The Flaherty Conundrum: Where’s The Crime?

justice weepsI’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.


8 replies on “The Flaherty Conundrum: Where’s The Crime?”

  1. Matt: “There was no attorney client relationship here.”

    Interesting point. Flaherty and alleged victim had no relationship. They were on par with each other.

    Harvey Silverglate has often urged the public not to speak to the FBI until the FBI reforms its report writing process.

    Are Harvey’s words to strangers hindering prosecution like Flaherty’s words to alleged victim?

    Does Flaherty not have a First amendment right like Silverglate?

    What about the alleged victim’s Fifth amendment right to silence?

    Didn’t Flaherty (and Silverglate and anyone else) simply tell the alleged victim to exercise his Fifth?

    Didn’t alleged victim make clear to Flaherty when he accepted the A&S that he wanted to exercise his Fifth?

    How can it be a crime to exercise your First amendment rights to tell another citizen How to exercise their Fifth amendment right?

    Shooting from the hip,


  2. Failure to follow established legal protocol with a state court filing of A@S was playing a bit too high , wide, and handsome. While perhaps more expedient than shoddy practice it contributes to an … air nefarious … in the matter. You simply can’t ” blow off ” the “Feds.” Let’s face the plain and honest fact and reality that their powers have always skirted the strictly Constitutional, and that in dangerous times this has its advantages. It has its disadvantages also. There is a weighing we must do in evaluating both. Perhaps this does require looking out at times from ‘ neath Justice’s blindfold. This is an eminently arguable point naturally in our free, by and large, society. Point is mooted as to Atty. Flaherty operating blindly advising a party, not a client, cooperating with Agents as Counselor Flaherty was blithely ignorant of that circumstance. The lawyer played it a little fast as brash young lawyers often do. Carmen Ortiz sees her Star now arrested from free fall and rising again with her resounding thrashing of Tsarnaev and that satisfactory verdict a majority thought improbable. The US Attorney should adjust that well earned laurel wreath and feel comfortable wearing it. This Flaherty business is small beer. It only distracts.

  3. on a daily basis attorneys advise their clients who may or may not be the subject of a federal criminal investigation not to talk to investigators and/or to refer them to the attorney. Is this not similar to Mr Flaherty’s situation or is it considered attorney-client privileged communication?

    1. Niall:

      It is a little different. Flaherty was not advising his client but a person his client had assaulted, the victim. There was no attorney-client relationship here.

      I would note thought that this could have applied in the attorney-client situation. You are right that attorneys advise their clients not to talk to investigators. In fact, the cops do the same thing under the Miranda decision where they tell the person in custody he has a right to remain silent. Reading the language of the statute that is so broad it could encompass that situation.

      The attorney-client privilege is that of the client. He can tell anyone what he told the attorney but the attorney cannot disclose what was said. In theory a client could go to the federals and say attorney X told him to give them a run around. That would be a crime except the federals would not go after the attorney because the courts and bar (I hope) would feel that undermined the system.

    1. Douglas:

      A jury trial if it can be avoided is the best option. It is difficult to present to a jury what a common practice is among attorneys. There is only so much of what goes on in a situation that can be brought into court to give the full picture and a sense of how things are done. The law requires a formality with respect to accord and satisfaction. Flaherty didn’t follow the formality. Any lawyer who came in and testified for him would be asked about the formality. He or she would say that’s the way it is done. The prosecutor will then address the jury in closing and say: “why do you think Flaherty didn’t do it the right way. What was he trying to accomplish? Was he hiding something?”
      Any lawyer in the business would know he was just taking a short cut; the jury won’t know that. I was involved in a case where the cop couldn’t testify because he never showed up at work on time but signed himself in as though he had. His bad habit had nothing to do with the act charged but if a jury heard it they would think he was some sort of crook or cheat.
      Jury trials are always dangerous with a capital D. Sit in a courtroom during a jury trial or look at the pictures of the Hernandez jury and ask yourself would you want to put your future in the hands of those people who know nothing about you.

      1. Matt:

        Your comments are well taken. However, you left out the critical element of “intent.”

        If Flaherty had no bad faith intent, that would come out in a trial. Wouldn’t a good attorney be able to persuade a jury that Flaherty’s “character” is of high standing, if it is?

        Further, if any lawyer in the business knows Flaherty was just taking a “shortcut”, that’s testimony in his favor, providing he could find several lawyers who would testify against the bullies and cowards in the Boston US Attorney’s office. Remember, based on my direct knowledge, frame ups, retaliation, abuse of power, “dirty hands” and lying to judges are a specialty of some in that office.

        The reason a jury trial is the best option is because a not guilty finding would, most likely, put the US Attorney’s office on notice not to retaliate against Flaherty, as well as other reasons.

        A settlement may mean silence and Flaherty always under the threat of retaliation.

        1. Douglas:

          I heard through the grape vine Flaherty’s met with one of the best criminal defense attorneys in Boston. I’m not sure if he retained him but if he did that’s good. You always want to avoid a jury if you can; the jurors are very unpredictable no matter how strong a case or defense may be. As for retaliation, Flahery can’t be worried about that at this time since they are already shooting at him. They’ll only get one shot at him and this is it.

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