The Squirming Will Be Widespread When the Defense Goes Ballistic at Probation Trial(s)

Friday, December 6, 2013

If you were Brad Bailey, a noted defense lawyer at Denner Pellegrino, and you were representing Elizabeth Tavares in the federal courts, you’d be doing what he’s doing now: trying to put her in a position where she’s more likely to evoke sympathy from a jury.

Toward that end, Bailey filed a memo Nov. 1 in the U.S. District Court of Massachusetts supporting his motion to sever Tavares’s case from that of the other persons charged in connection with an allegedly rigged hiring system in the Probation Department.

A deputy commissioner in the department, Tavares was indicted in 2012 along with Probation Commissioner John J. O’Brien and Deputy Commissioner William H. Burke, III.  The government intends to try all three together.

The indictment said, in part:

“Between 2000 and 2010, the defendants…devised and intended to devise a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses and representations, in that the defendants and their co-conspirators did award employment and promotions to individuals who were solicited from and sponsored by members of the state legislature and others when those sponsored individuals were not the most qualified candidates who had applied for the employment or promotion.”

Keep in mind that “and others.”

While arguing now on grounds related to the Sixth Amendment, Bailey has a strategy seemingly designed to exploit the advantages of having Tavares face the jury as a woman alone.

If she’s tried separately, prosecutors will not be able to buttress allegations of a group criminal enterprise by constantly pointing to the actual group accused of leading the enterprise.

At a stand-alone trial, it will also be easier for Bailey to imply that she lacked the power, the heft, to make a substantial contribution to any such putative scheme.  Bailey would have Tavares sitting there, all meek and mild.  Under his tutelage, she would do her best to appear small, ordinary, and lacking in guile.

Most of the jurors would come to such a trial with the notion that men have more power in organizations than woman because that’s the way it’s always been.  They would be inherently susceptible to the suggestion that Tavares could not have been a real force in Probation.

Whether he wins a separate trial for Tavares or not, Bailey will try to get as many women on the jury as possible.  Women will be more likely to see Tavares as a pawn, not a queen, in a man’s game.

Bailey’s memo of Nov. 1 argues that “A joint trial would violate her (Tavares’s) Sixth Amendment rights and prevent the jury from making a reliable judgment.”

The motion continues: “At trial, the government would introduce sworn statements made by Tavares’s co-defendant, William H. Burke, III (‘Burke’).  The government would use these statements to support its case against the defendants.  However, these statements are admissible only against the declarant (Burke), and their introduction at a joint trial would violate Tavares’s rights to confront her accusers as guaranteed by the Sixth Amendment.”

The above-cited sworn statements are found in Burke’s testimony before what is commonly referred to as the Ware Commission.  The name comes from the independent counsel, Paul F. Ware, Jr., who was appointed by the Massachusetts Supreme Judicial Court to investigate Probation after The Boston Globe published an expose on the department: “An Agency Where Patronage is Job One,” 5/23/10.  Ware is a partner at Goodwin Procter; he’s a lawyer’s lawyer, widely respected in Boston legal circles.

Here’s an excerpt from Burke’s testimony before the independent counsel, as quoted by Bailey in his Nov. 1 memo, where he argued that Burke’s Ware Commission testimony, if introduced as evidence during a joint trial, would hurt his client, Tavares, and violate her constitutional rights:

Q. Did you have conversation with Mr. O’Brien in which he personally recommended to you candidates?

A. No

Q. On no occasion?

A. On no occasion did Jack O’Brien ask me to put anybody on a list…If I thought somebody was good, I would tell Liz or Frannie and say, this guy is outstanding; this lady is outstanding.  But he has never, never.

Q. When you were given names which you understood to have come from the Commissioner, that came through principally Liz Tavares?

A. Frannie or Eddie Ryan.

Q. Ed Ryan?

A. Fran all.

Q. And Liz Tavares?

A. Liz Tavares, right.

Q. Those were the individuals who passed along names from the Commissioner to you or to Regional Administrators or to interview panels, right?

A. Correct.

Q. Did you ever have any conversation with Commissioner O’Brien with respect to his meetings with legislative leaders for funding?

A. No.

Q. You understood, didn’t you, that while it wasn’t written down, the legislature was funding Probation generously because Probation was responding to legislative requests for hiring, among other things, isn’t that right?

A. I’d say yeah.

Q. So you understood that one of the reasons Probation under the auspices of Jack O’Brien could get the funding it needed was that Jack O’Brien was being responsive to the hiring requests of legislative leaders?

A. And judges.

Bailey’s Nov. 1 memo provides a clear picture of the strategy that he -- and no doubt the lawyers for the other defendants -- will use at the trial or trials (whatever the case may ultimately be).  It will consist of an aggressive attack on the Ware Commission, and on the government for bringing charges only against the three executives in Probation, and not also, for example, against any legislators, judges or upper- echelon court officials.

The order authorizing Ware to investigate the Probation Department empowered Ware “to compel ex parte sworn testimony from witnesses and to issue a report regarding wrongdoing by Probation employees,” the memo states.  “The inquiry was the quintessential Star Chamber – the order contained no provision for Probation employees to cross examine witnesses or to respond or present contrary evidence or conclusions.”  (Ex parte actions are those taken for the benefit of one party only in a legal proceeding; here, it means testimony that could have solely helped the investigators, as opposed to, possibly, both the investigators and the investigatees.)

The memo continues:  “The order limited the investigation to Probation and judicial branch employees, exempting the judges themselves from scrutiny.  The language and timing of the press release (announcing Ware’s appointment) and order suggest that the results were pre-ordained – scapegoat agency bureaucrats, while glossing over or ignoring their judicial overseers.  It is not surprising that the interrogation of witnesses (before the commission) consisted of primarily leading and badgering questions targeted at creating grounds to terminate O’Brien and Tavares, who were still employed by Probation.”

Bailey quoted the commission transcripts at some length in his Nov. 1 memo.  Here’s an illustrative snippet, re: leading questions, from the questioning of Deputy Commissioner Burke:

Q. And so your understanding is that Commissioner O’Brien would meet with legislative leaders and would present the financial needs of Probation or desires of Probation?

A. Mm hmm.

Q. The legislature would respond, and they would respond in part because Commissioner O’Brien in turn would meet the legislature’s job needs, is that correct?

A. Ask the Commissioner.  I mean, I didn’t hire one person.

Q. I understand that, but you’ve been around a long time.

A. Yes, I have.

Q. You’ve been Deputy Commissioner a long time.

A. Yeah.

Q. You know politics; you know the real world; you know Massachusetts.

A. Yeah.

Q. The way in which it worked was one hand, you know, washed the other?

A. Washes the other.  Yeah, I know.  I know what you’re talking about.

There’s an axiom of politics often cited when a candidate who seemed so attractive and compelling at the beginning of his campaign goes down to defeat:  “The rationale for your campaign is never as strong as on the day before you announce your candidacy.”

I wonder if a variant of that will one day apply to John J. O’Brien, William H. Burke, III, and Elizabeth Tavares: “The rationale for the charges against them was never as strong as on the day before the grand jury indicted them.”

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