The decision by U.S. Attorney Carmen Ortiz to go after Massachusetts attorney Tim Flaherty is so unusual that the question that all should be asking is why did she target him? I ask that because what Flaherty had done prior to Ortiz and the FBI getting involved was something that most criminal attorneys have often done. They contact the victim of an assault and battery and try to work out a situation (called an accord and satisfaction in Massachusetts) where the victim of the crime receives some payment for his injury and the attorney’s client avoids getting a criminal record for the act.
In today’s Boston Herald criminal defense attorney Terrence Kennedy, a and current member of the Governor’s Council, said: “I’ve done this countless times. He may have chosen his words poorly, but this is a good, honest lawyer”
In the Flaherty case there was no federal crime until Ortiz came along with FBI agents and decided to manufacture one. That’s right, there wasn’t even a state crime as I just explained. To pick one lawyer who did what other criminal defense lawyers do on a daily basis is to target that lawyer.
Here is the crime that Ortiz is using to try to ruin Flaherty’s criminal career and life. The one count indictment reads: “corruptly persuade . . . with intent to hinder, delay and prevent the communication to a law enforcement officer of the United States of information. . .” Flaherty told the person who had accepted $2,500 from him in exchange for not going forward with his complaint not to call back an FBI agent who had left a message that he wanted to talk to him.
I wonder how many of you knew that telling a person not to return an FBI agent’s call could get you indicted. That is now the case in Boston. You have heard the expression “loose lips sink ships”; well add to it “loose lips sink lawyers”.
If Flaherty said to the person, “you don’t have to call him back” rather than “don’t call him back” he would not be facing 20 years in prison. But even writing that I have to pause, because as you know this was an Ortiz/FBI office set-up.
Here is what is frightening. The victim who took the $2,500 who was calling Flaherty was sitting with FBI agents who were prompting him what to say and recording their conversations. The FBI agents were not investigating any crime because no crime had been committed. The FBI agents were attempting to create a crime.
The FBI agents had earlier called Flaherty on May 6, 2015. They did not quite get the evidence they wanted. They then called him on May 21, 2015, and he made the statement I just referred to. I can only assume that if he did not make it then, they would have kept trying until he said something that got him in trouble. This is the level to which the FBI has fallen.
The way Ortiz structured the indictment she made it look like a bribery case. Both major Boston newspapers played up the federal indictment the way Ortiz and the FBI wanted. The Boston Globe headlined its story: “Attorney is said to have bribed victim not to testify.” The Boston Herald had this: “Attorney charged with trying to buy victim’s silence.” Both of these statements are untrue. I would expect each newspaper to retract them and report the case correctly.
I will note that the Herald did a little extra work. The guy who wrote the first story with the erroneous headline, Bob McGovern, asked other defense attorneys about Flaherty’s case. Today his story’s headline is: “Lawyers decry fed indictment against Timothy Flaherty.” He spells out the same thing I wrote about earlier in the day that Flaherty committed no crime in doing what other criminal lawyers have done over the years and what is legal in Massachusetts. Like me, one lawyer expressed “outrage” at this action by Ortiz; another said it was “frightening” and a third said it could have “a chilling effect.”
Sadly the Globe doubled down with a false headline today: “Attorney accused of bribing hate-crime victim with hush money”. That, of course, is expected because that paper and the U.S. attorney are like Mike and Ike working hand-in-hand. The difference in coverage shows what happens when one paper strives for the truth and the other to please.
Here is the big question that has to be answered. Why did the FBI and Ortiz target Flaherty when what he did is legal and done routinely by criminal defense attorneys?
Could Ortiz have been doing another favor for the Boston Globe which in the past wrongly impugned the integrity of Tim Flaherty’s father who was Speaker of the House and a good man? Was it because Tim Flaherty’s father had been speaker and Tim ran for political office that she figured it would be a big story? Did Flaherty do something to displease one of her assistants? This is so far out of the norm that it carries all the suggesting of a revenge prosecution.
There may be another explanation that may make sense. It is that Ortiz lets the FBI run her. I’ve written about this before. It is important a prosecutor not be pushed around by the cops. The jobs are different; one does the hard street work of seeking out crimes and trying to prevent them (not to invent them as here) and the other to see that justice is done. I have had to tell cops we would not prosecute cases that they worked on. They were not happy but I did my job as I thought it should be done.
Maybe Ortiz had abdicated her authority to the FBI. Perhaps they tell her what cases she has to prosecute as in the Caswell Motel matter. She is afraid to exercise sound prosecutorial judgment and say no. If she’s come to that she should understand that she is no longer doing the job the people expect of her.