U.S. Attorney Ortiz’s Federal Prosecutors Reined In: Will Judges Follow the Law?

searching-for-truthMcDonnell vs United States will have serious ramifications on the recent actions by the Boston U.S. Attorney Ortiz’s continuing intrusion in to matters best left to the state.

It is hard to see how the Appeals Court will uphold the conviction of Probation Commissioner John O’Brien after that decision; it is questionable whether the Teamsters who have been indicted under the Hobbs Act will see their cases go to trial; it is likely that the attempt by Ortiz’s office to run the Boston mayor’s office and the Boston Public Schools will not be able to withstand honest judicial scrutiny.

The Supreme Court is worried that federal prosecutors like those young college girls on spring vacation have gone wild with their broad interpretation of the federal law and with their overreach into activities that belong to the state. We have seen Ortiz’s office has become involved in gimmick prosecutions seeking publicity in the media. On more than one occasion it has used the civil rights statute to start up an investigation of a state matter and then bring about a prosecution under another statute such as lying to a federal officer or obstructing a federal investigation. No civil right violation occurred, none was found, and none was prosecuted. It is a dastardly and underhanded trick to fabricate an investigation simply for the purpose of hoping some poor guy or gal will slip up during its investigation so that it can bring another type of prosecution.

Here are the words of the Supreme Court that should bring comfort to the people of a state and positively remind the federals to stay out of state matters. The McDonnell Court noted: “The Government’s position also raises significant federalism concerns. A State defines itself as a sovereign through “the structure of its government, and the character of those who exercise government authority.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). That includes the prerogative to regulate the permissible scope of interactions between state officials and their constituents. Here, where a more limited interpretation of “official act” is supported by both text and precedent, we decline to “construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards” of “good government for local and state officials.” McNally v. United States, 483 U. S. 350, 360 (1987); see also United States v. Enmons, 410 U. S. 396, 410–411 (1973) (rejecting a “broad concept of extortion” that would lead to “an unprecedented incursion into the criminal jurisdiction of the States”).[my emphasis] ­

The noted civil rights attorney Harvey Silverglate wrote with respect to the O’Brien trial: Now the trial is over, but no one is wondering aloud whether the chosen remedy — prosecution in federal court — was, perhaps, worse than the disease itself.  He pointed to a prior Supreme Court case that said when a federal statute: “would mark a major inroad into a domain traditionally left to the States, we refuse to adopt the broad reading in the absence of a clearer direction from Congress.” He noted how Judge Young delivered: to the jury an unusually prolix and complex set of jury instructions — his attempt to clarify legal concepts that, in reality, could not be made clear.

O’Brien’s conviction should be reversed based on that alone but certainly after the McDonnell decision. Based on the McDonnell language the Ortiz’s investigators have no business intruding on the Boston Public Schools or into the Boston Mayor’s office in determining whether its idea of “good government” procedures are being met or trying to determine what is the appropriate level of discipline that should be given out by the administrators at Boston Latin School.

Nor should it be intruding on the rights of union people to set up picket lines against a business by calling it a criminal extortion. Every strike, work stoppage, picketing, or organizing could be labeled as such. The workers are telling the owners they are going to take certain actions such as a strike in order to get certain benefits such as an eight-hour workday.

The state as a sovereign has to right to be free from an overly intrusive federal prosecutor’s office. The only question that remains is whether the Boston federal judges will follow the demands of the Supreme Court or continue to act in fear of the prosecutor’s office and aid and abet it in its intrusion into state matters as Judge Young had to do in the O’Brien case.

7 thoughts on “U.S. Attorney Ortiz’s Federal Prosecutors Reined In: Will Judges Follow the Law?

  1. Matt,

    Long time no post. Hope you are doing well. Anyone could read the tea leaves on McDonnell since the oral argument, including USA Ortiz. That leaves me to believe either they were not worried about the decision, or will use a statute other than the Hobbs Act. First to come to mind is RICO, where the unions would be the enterprise, and the phone calls are the predicate acts of wire fraud or intimidation .

    In any event, the DOJ and the criminal defense bar knew this decision was coming. It would be naive of us to think they did not plan for it.

    1. Jim:

      Hope you are well. I suggest you give them too much credit here in Boston. They are not known for their wisdom. I assume you read the decision; it was unanimous as you know. I liked the part that said in effect words are known by the company they keep when they suggest the words “question and matter” do not mean what we normally would thing they mean because they are next to words that imply some formality such a a court proceeding therefore they have to be limited.

      Too bad the Florida Appeals court did not use the same rationale on the John Connolly appeal where it found that carrying a gun did not have to occur during the actual time of the crime which the other words indicated had to be the case but could occur during the planning stage of the crime.

      Good to hear from you again.

  2. Matt, this seems like good news; I hope it turns into great news for the affected parties whom you list.

    Would not Tim Flaherty also benefit from McDonnell?

    1. GOK:

      It should affect some of the cases. As for Tim Flaherty I should have written about his case. I will but right now I am tied down on other matters. Tim’s case is over. He worked out a deal where he pleaded guilty in the state court to a misdemeanor and hit the street. As part of the deal he had to give up his license to practice for a year. I have not talked to him about it and will not since I want a free hand to write on it. As part of the deal he might have agreed not to say anything nasty about the federal prosecutors. It was all a sham as I indicated in the early posts – if any crime was committed it was a state crime but in truth no crime was committed. But Tim had to eat a little crow to get himself out of that devil’s pit on the waterfront where he was facing 20 years and prison and total disbarment. The federal prosecutors had to know they had no case but Tim could not afford (the financial cost of a trial would have been enormous) to rub their noses in the dirt.

  3. Down here in the whisper stream
    at Flying Pond Variety the MC Irregulars
    gathered around the Green Mountain
    coffee dispenser to watch Elbows Wychulis
    demonstrate his DOJ break dance moves
    to the music of the southie group called the
    Average White band doing their hit
    the Much Ado About Nuttin Funky Chicken.

    It’s all about branding ‘ Capo Ortiz’ member of
    the DOJ Crime family , helping her slide
    into elected office or to the bench and
    increase the power of her tribe, eh?

    in other news

    File under you first have to get caught
    to become a statistic

    https://www.washingtonpost.com/news/true-crime/wp/2016/06/22/study-finds-1100-police-officers-per-year-or-3-per-day-are-arrested-nationwide/

    officers arrested 1,100 times per year, or 3 per day, nationwide
    June 22 2016

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