O’Brien’s & Co. First Step Back:

(1) Lady JustinceThe prosecution of John O’Brien and his co-defendants Elizabeth Tavares and William H. Burke seems to have taken a new turn. The Court of Appeals is having a little trouble with it and well it should. It seems it doesn’t want O’Brien and Tavares to have to do their sentences prior to their appeal being heard. So it stayed their sentences until then. That’s good news for the O’Brien team but even better news is that one of the best if not the best criminal defense lawyer in Massachusetts, Martin G. Weinberg, has joined their team.

Their prosecution was one of the strangest in the annals of American criminal law. It could only have happened in a U.S. Attorney’s office that lost its way a long time ago. That was shown by the Caswell Motel and Aaron Swartz case among others.

You might remember that John O’Brien engaged in the age-old game of patronage. O’Brien was the Massachusetts commissioner of probation. He got his job after working in the probation department for many years, having his work recognized, and being picked for the position by a judge who knew O’Brien, happened to like him, and thought he would do a good job. Some would suggest O’Brien’s hire was a patronage hire; others would point to the job he did and say the judge made a good hire patronage or not.

Under O’Brien the probation department operated quite well if you measure it by the happenings in the real world. As I understand probation, its job is to help people who have gotten themselves involved in criminal activities to change their ways. I’d suggest one way, and probably the best way, to judge this is to look at the crime statistics in the state. While O’Brien was in charge of the probation office each year the crime rate fell. It was down significantly by the time he was removed from his position.

O’Brien had the sole authority to appoint new probation officers and others who would work for the probation department. He set up a system to review candidates. He hired no candidates who did not have the basic qualifications necessary for the job.  But he did hire a lot of people who were recommended to him by legislators, district attorneys and judges. Not all of the new hires came that way but a good proportion of them did.

The thing with hiring probation officers is it really is a subjective determination trying to figure out who will be the best one out of a group. Is the person who went straight through a 4 year college, into a masters program, and did some social work better than a person who worked as a bartender a few years, went to college at night, and did construction work? Who will best relate to people who have committed crimes? Is a person who was an alcoholic who joined AA and straightened herself out better than one who never drank? Would the former have a better understanding of the problems of criminals than the latter?

O’Brien got into trouble when a newspaper decided he should not have been hiring people who got their jobs through patronage. It highlighted a few of the people who felt hurt by the hiring process. An investigation showed O’Brien had done a lot of patronage hiring. He was removed from his position by judges who thought he should not have done this although any judge who did not know this is how life worked probably should not be judging people.

It should have ended there. But the newspaper decided it was a crime. The Boston U.S. Attorney who surrenders her judgment to that paper decided to make it into a crime.

At trial the judge said patronage was not a crime. The U.S. Attorney agreed. All the evidence that came in was about patronage. The U.S. Attorney said this was more than patronage, it was a sham hiring system. But after all isn’t that exactly what patronage is. With the blindness of zealots the prosecutors called it racketeering. The judge unwilling to recognize that patronage like a rose is still patronage even by another name did not want to go against the prosecutor. He let the jury decide with such a convoluted explanation of the law that Maimonides could not have figured it out.

The overall problem was O’Brien had the right to hire who he wanted. There was no money exchanged for any of the jobs. Neither O’Brien nor his co-defendants put a penny in their pockets. Whether O’Brien had a sham system or no system it was his decision as to who to hire, not some newspaper or prosecutor.

The Court of Appeals has taken a quick look at the case. Three judges know that to be guilty of a crime you must know you are committing a crime and if it takes a convoluted explanation to a jury to define a crime then something is wrong. The trial judge was going to have O’Brien go off to prison while he appealed; the Court of Appeals thought that was foolish. What kind of justice would it be if O’Brien did his time in prison and then the court said he was  wrongly convicted?

Another thing I can’t figure is why the U.S. Attorney’s office wanted O’Brien to go to prison before his appeal was heard. It argued to the Appeals Court he should not get a stay. What is wrong with that office. I guess it finds it difficult to hide its malice. When asked to comment on the Appeals Court decision it acted like the great majority of the Florida State Seminole football players after they lost to Oregon State.


  1. Matt, what effect if any would an appeals court spanking do to wyshak, Ortiz, and the moakley ct trial judges (who seem to have been hypnotized by wyshak) as a whole and individually?
    Could this be the beginning of the end of the good ship wyshak?

    • Ernie:

      I was disappointed in Judge Young letting the case go to the jury. I thought he was one of the few federal trial judges who had the courage to stand up to the US Attorney’s office. I’m hoping that the Appeals Court starts putting pressure on the lower court federal trial judges suggesting to them that it is time they realize they no longer are prosecutors, they have life tenure, and they are supposed to be neutral. The majority of them come from the U.S. attorney positions so they seem to want to go along with the prosecutors. Sandra Lynch the chief judge of the appeals court who was on the opposite side of the Boston school busing case from me isn’t a former fed so maybe she is seeing how absurd some of the indictments have been. Its good Ortiz didn’t appeal the Caswell Motel case or the Appeals Court may have cracked down sooner. Let’s hope the Court of Appeals cuts the sails on the Wyshak ship and reminds the Justice Department that half of its name is justice and that is what it should strive to do.

  2. Speaking of sore losers did you see the defeated Duke basketball team leave after the game without shaking the NC State players hands? Does the stay offer a glimmer of hope for the defendants? No crime whatsoever was committed here. But does the Circuit Court have the nerve to reverse a fellow judge? If the SCOTUS heard this it would be similar to the St. Pats parade case. A 9-0 decision saying the Mass. judges operated without any lawful authority. Would the Appeals Court issue a ruling counter to the Globe’s interest? Or is this the beginning of the runaround comparable to the six year delay Florida has inflicted on Connolly?

    • NC:

      That’s disgraceful if the Duke team did that. I didn’t see it but I understand a Duke grad might be with you during the college championship game so you may want to mention that to him. What does that say about Coach K. Has he stayed around the farm too long? Sounds it.

      I’m hoping the Appeals Court will recognized you have to have some idea you are committing a crime for it to be a crime. A long time ago I pointed out how a vendor selling T shirts could have been charged under the Wyshak theory of RICO. I know the judges want to keep us safe from the criminals but they should first give us notice as to what it is to be a criminal and not let a prosecutor turn innocent acts into crimes.

      What is wrong with Young when he should know the case is a joke and then doesn’t stay O’Brien’s sentence knowing he will have served his time by the time the appeal was heard? I’m wondering whether he like Coach K has been around a little too long. I did note that the Globe buried the matter of the stay. Maybe the judges on the Court of Appeals are Manchester United fans and that the Globe owner also owns Liverpool will make the court more willing to go against the dictates of the Globe.

      If it takes the Court of Appeals six years to make a decision and they uphold the conviction at least O’Brien will be on the street during that time. You really have to believe that unless it also is willing to tip the law on its head O’Brien’s case will be reversed. Fortunately for O’Brien Wyshak was not able to link him to the much hated Winter Hill Gang.