Defendants in Probation Job-Rigging Case Try to Throw Judge Under the Bus

If I was doing something wrong, my boss should have stopped me.

That doesn’t strike me as the greatest defense when you’ve been accused of a crime by the federal government. If the need for a conscience arises, I'll borrow one. But you never know, it could work. 

We’ll have to wait and see how it plays out for John J. O’Brien and his co-defendants in the Probation Department job-rigging case, William H. Burke, III, and Elizabeth V. Tavares.

If anyone doubted that O’Brien and his former colleagues were going to throw court leaders under the bus, those doubts were erased in the lengthy brief filed recently in U.S. District Court, Boston, by lawyers for the trio.

The defense is trying, through this brief, to force the prosecution to turn over scores of documents compiled during the investigation into the Probation Department.  It asserts, in part: 

“The defendants’ actions comported with the trial court’s hiring policies and practices, were well known to the Chief Justice for Administration and Management Robert Mulligan, and were consistent with CJAM Mulligan’s own hiring practices.”

Given that O’Brien and Mulligan couldn’t stand each other, O’Brien’s attempt to gain cover under Mulligan’s robes is, to put it mildly, rich.  Given Mulligan’s integrity and the generally high regard for him in the Commonwealth’s legal and political circles, it is also sensible.

Folks can (and do) argue all day over whether the hiring practices implemented by O’Brien, et al. violated the law or were simply a clever, new form of old patronage politics.  And they can argue over whether Mulligan should have used his authority more to quash O’Brien before the Boston Globe arrived on the scene.  It was the Globe investigation, remember, that led first to the Ware Report in 2011 and then to the indictments by the U.S. Attorney.

But you will find no one in Boston who knows Mulligan, who says the judge would ever have looked the other way if he believed O’Brien was doing anything illegal.

He is admired as a man who fought for his country as an Army infantry officer in Vietnam, as a lawyer who ably prosecuted tough cases as an assistant Attorney General and assistant U.S. Attorney, and as a manager who has handled two of the most difficult jobs in our court system: Chief Justice of the Superior Court (1994 to 1999), and Chief Justice of the Trial Court since 2003.

Mulligan is due to leave the Trial Court this summer when he reaches the mandatory retirement age of 70.

If the Probation hiring case goes to trial, you can be sure O’Brien’s lawyers will do their best to get Judge Mulligan on the stand and to get him to state what those who know him best say: he would never have looked the other way if he believed O’Brien was doing anything illegal.

I’m probably missing something here, not being a lawyer and all, but it seems that a statement like that, coming from a man of the presence and bearing of the six-foot-seven Mulligan, would likely leave a favorable impression on a jury.

I’ve always believed, in any case, that a jury would have a hard time convicting O’Brien, et al. as long as their lawyers could tell jurors that not one of the legislators whose constituents supposedly snagged jobs and promotions under O’Brien's allegedly rigged system has been charged with a crime.

The prosecution case rests on the argument that O’Brien, et al. worked hand-in-glove with legislators to hire and promote less-than-optimally-qualified individuals who had an "in" with an office holder.

As long as the prosecution remains in the de-facto position that only O’Brien, Burke and Tavares should be punished for those actions, the prosecution has a credibility problem and a fairness problem, both of which could prove fatal to its case.