Tim Flaherty whose background I set out in Part 1 of this series is one of the better defense lawyers in the state. He has tried some hard cases and has achieved good success. He is a busy lawyer who has given each client he represented the type of advocacy one deserved. He is ethically sound, has never been in trouble, and an otherwise outstanding member of the Massachusetts Bar.
That is what makes the federal case brought against him by Fred Wyshak and the attorneys in his unit so inexplicable, They are going after a good lawyer, a good guy, a father of a 5-year-old kid and trying to strip him of his livelihood and probably put him in prison over what for all appearances is a nonsense if not fabricated matter. Why, I ask, are they so intent on doing this in such a shabby way.
Shabby? Yes, let me point out the ways.
The case ostensibly arises because two days before Christmas a state cop calls Wyshak’s unit and tells them of the case they are investigating which is one of an attorney [Flaherty] who is trying to buy off a witness. They are not investigating anything to do with the civil rights case.
First, in my experience, state cops do not make cold call the U.S. attorney’s office with cases. I never heard of such a thing happening. The matter in which the alleged intimidation related to was being prosecuted in the state by the Middlesex District Attorney. I would expect that the normal response by an assistant U.S. attorney is to direct the state cop to the people he works for, the Middlesex DA.
The federal prosecutors and state prosecutors in my time deferred to each other. If there is going to be a prosecution out of a state incident they confer over where the best result would be attained. Attorney Martin Weinberg noted during his oral argument that “the federal government does not walk in as a second sovereign without compelling reasons.”
Remember John Salvi who killed two women at the Brookline abortion clinics? That was a clear federal civil rights case. The U.S. attorney wanted to intervene in it. He wanted the FBI to take it over. He was told that the state was going to prosecute the murders. He put the federal case on hold. That is the way things are done. To have the AUSAs jump into an ongoing state prosecution without touching base with the district attorney baring extraordinary circumstance is just not done.
This case did not involve a significant matter that the state could not handle. There was no reason or need for any federal attorney to intervene. Had someone been killed, badly beaten or some other atrocious situation happened and the district attorney’s office was deemed not up to the task perhaps it would happen but even then not before extensive consultation. Bottom line is that traditionally federal prosecutors do not open a case based on the same facts if it is already being prosecuted in state court.
Everything about the civil rights case shouted out it involved no more than a stupid dispute over a “fender bender” instituted by the alleged victim. There was no indication it was not being well handled. Why would the federal prosecutors skip every normal procedure and get involved? Why would a case involving a civil rights investigation be immediately opened up when considering the number of incidents like this that may have occurred in the state there has only been one civil rights case opened by the Boston U.S. attorney in the last three years?
Not only that as earlier mentioned the AUSAs alleged they immediately made the state cops into a federal investigators. There is no paperwork showing this was done. They did that, if they did, so that he could record Flaherty which he could not do under state law. The state cop who is doing the recordings in his report makes no mention of this. There were no federal agents present at the time. The FBI had no idea what was occurring. It was a federal investigation by federal prosecutors instantaneous instituted over a trivial event being conducted with state police who were magically made into federal investigators.
The words of Tevye ring in my ears: “Unheard of, absurd, unthinkable.”
Now get this. When Flaherty tells the victim that he should accept the $2,500 as an “accord and satisfaction” (he uses those words) which is permissible under state law the federal prosecutors say this becomes a federal violation because unknown to anyone except them the state cop is a federal officer and Flaherty violated the federal law. That is he corruptly had the intent to hinder, delay and prevent the victim from communicating to that federal law enforcement officer who was investigating a civil rights offense even thought the state cop was in truth investigating a state offense of intimidation of a witness and was not investigating a civil rights offense.
The icing on the case is that the victim was in continuing contact with the state cop and when the FBI became involved he stayed in contact with the FBI and the AUSA throughout the investigation. There was nothing Flaherty did or could have done to hinder, delay or prevent it since it was ongoing.
This is the made up crime and unusual twisted circumstances that the federal prosecutors want a good lawyer to lose his livelihood over. This is the type of justice that is being dispensed out of the Boston U.S. Attorney’s office.