I’ve written about the federal charges against Attorney Timothy Flahery for allegedly hindering a person from contacting an FBI agent. I have hope that at some point an accommodation can be made short of trial that will allow Attorney Flaherty keep his law license so that he can continue to earn his living practicing law; and on the other side recognition that the federal government has a legitimate interest in its hate crime investigations. If the case goes to a jury, then anything can happen.
The facts in Flaherty’s case are that he thought he had a deal with the victim of an assault and battery, which appeared to be motivated by an anti-Muslim bias, to accept money in lieu of continuing the prosecution of Flaherty’s client. This is a perfectly accepted procedure in Massachusetts where victims of assaults can be compensated for their injuries in exchange for not going on with a prosecution.
Once the victim accepted the $2,500 payment pursuant to that understanding Flaherty felt the case was over. A couple of times the victim called Flaherty to tell him the DA’s office wanted to talk to him. Flaherty told the victim not to waste their time and to ignore them.
What Flaherty should have done when he made the deal was to follow a formality of having the victim sign a paper and then go to court to have the case dismissed. I assume in his mind he figured the same result could be accomplished by the victim not showing up at court. After all the victim took the $2500. based on that understanding. He would save himself and the victim time. If down the road it became an issue then he could go through the technically correct procedure.
In May the victim called Flaherty to tell him he received a call from someone from the Hate Crime unit of the federal government. A couple of weeks later he told him about a call from an FBI agent. The victim said these federal people wanted to talk to him about the assault matter. Both times Flaherty told him not to call them back.
There was something the victim did not tell him. He was with those people at the time he made the calls. In other words he was asking Flaherty what he should do when he had already done it.
Flaherty’s charge is a one count indictment which states he knowingly corruptly persuaded (or attempted to do so) the victim with intent to hinder, delay, or prevent the communication with the FBI a law enforcement officer. The first thing that comes to mind is did he “hinder, delay or prevent” such communication. I would think that telling a person not to call someone back would not fit into that category. The person could still make the call.
If you want to suggest his words make out the crime, wouldn’t it follow then if Flaherty said to the victim “think it over before you call back” or “sleep on it” or even “you don’t have to if you don’t want” are also crimes. They too would have delayed the communication.
What really makes this case strange is the victim had already made contact and was with the federals when he was telling Flaherty about them trying to contact him. There could be no hindering, delay or prevention because the act had already been done.
Nor could there be an attempt because the act had been completed. You can’t attempt to stop the Red Sox from ending up in last place in 2014. They have already done that.
The victim being in contact with the federals when he was talking to Flaherty how could any action of Flaherty hinder, delay or prevent him from doing what he is already doing? When Flaherty tells him not to call the FBI agent back while he is sitting next to the FBI agent who wanted him to call back charging Flaherty with such a crime truly elevates form over substance.
All of that aside, to commit this crime Flaherty had to “knowingly corruptly” do the persuasion. For corruption there has to be some wrong doing or evil motive. Flaherty gained nothing if the victim did not call the federals. He had no interest in whether the federals spoke to the victim or charged the person who assaulted him. His interest was in the state case which he thought was over.
He did not represent the client in the federal matter. Actually, if the federals did indict him Flaherty could have made more money by charging him a fee to represent him there. How could he be acting corruptly if he was acting against his own interest?
The only way Flaherty could have benefited was if he already charged the client to represent him both in the state and federal court. The only way the federals could prove that happened is if they persuade Flaherty’s client to say his agreement with Flaherty was for both state and federal prosecutions.
In other words they tell the guy who committed the crime they won’t charge him if he helps them make a case against Flaherty. That is a tantalizing offer to a person. Stranger things than that have happened; the case bears watching.