Reversal of Probation Dept. Convictions Means Ortiz Term Ends with a Whimper

Tuesday, December 20, 2016

Carmen Ortiz’s term as U.S. Attorney for the District of Massachusetts runs for only a few more weeks.  If she’s wishing it were over today, I’d understand. 

The biggest case Ortiz ever handled as the state’s top federal prosecutor, the alleged conspiracy to rig the entire hiring system in the Massachusetts Probation Department in favor of politically connected candidates, has fallen to pieces. The second-guessing has begun.

Lawyers all over town are saying: Why did she ever make a federal case out of patronage hiring on Beacon Hill?  This was never more than an Ethics Commission matter.  I’d hate to see how much the feds spent, the total number, on this case.

Late yesterday afternoon, the three-judge federal court of appeals for the First Circuit issued a ruling overturning the convictions of John J. O’Brien, 59, who served as Commissioner of Probation, the highest position in the department, from 1998 to 2010, and two of O’Brien’s deputies, Elizabeth Tavares, 58, and William Burke, 72.

Writing for the court, Justice Juan Torruella declared, “We find that the Government overstepped its bounds in using federal criminal statutes to police the hiring practices of these Massachusetts state officials and did not provide sufficient evidence to establish a criminal violation of Massachusetts law under the Government’s theory of the case.”

Back in March of 2012, right after she’d indicted O’Brien and his deputies, Ortiz held a press conference at the Joe Moakley courthouse in South Boston.  She emphasized, “This is a very serious matter.  We’ve just indicted three former state public officials who were supposed to be working on behalf of this Commonwealth and who were engaged in criminal activity.”

Ortiz opined, “There was a lot of patronage that was clearly going on (in the Probation Department).”  But patronage, “in and of itself, is not illegal,” she pointed out. 

“It could be very unseemly.  It could be criminal under some circumstances,” she said.  “But, in and of itself, it’s not, and we really have to be fair.”  

In 2014, a jury decided that O’Brien was guilty of one count of racketeering and conspiracy and four counts of mail fraud.  Tavares was found guilty of mail fraud, racketeering and conspiracy, and Burke of conspiracy.  Each of those convictions has now been thrown out.

Contrary to what Ortiz has been saying for over four years, there was no “criminal activity” in Probation.

The appeals court ruling in favor O’Brien et al. will send Ortiz, a resident of Milton, bleeding into retirement.  She’s the ultimate loser in a very prominent and potentially impactful case.  If the court had upheld these convictions, we’d now be discussing how the boundaries of patronage had been permanently redrawn.  Instead, we’re talking about the irreversible fading of Ortiz’s light in legal circles.

Ortiz’s defeat is also a blow to the legacy of the man who, in 2009, appointed her, President Barack Obama, even though, on balance, it’s more like a mosquito bite than a broken nose for a leader confronting the repeal of the Affordable Care Act, the rejection of the Paris accords on global warming, and the abandonment of the war-averting nuclear deal with Iran.

A little over two years ago, The Boston Globe published a brief editorial concerning the sentencing of O’Brien, which was then pending.  Recall that, in 2010, it was the Globe’s Spotlight Team that conducted an investigation and assessment of Probation Department hiring, which led to the independent counsel (Ware) report, which led to the indictments by Ortiz.

“It’s irksome to some that none of the lawmakers who supplied ‘recommendations’ to O’Brien, and then fattened his budget after he acted on them, have suffered any consequences, while O’Brien faces years in prison,” said the editorial, which was headlined, “John J. O’Brien’s sentence should send a warning on patronage.” 

The editorial continued:

“Nonetheless, that doesn’t exculpate O’Brien, and his conviction should be a warning to officials that if they claim to hire on merit, circumventing those rules will carry great risk.  Lawmakers can ask officials for favors, but if O’Brien’s sentence scares them into ignoring them, that would be a fine outcome.

“The fact that O’Brien has expressed no remorse almost dares Judge William G. Young to deliver a harsh sentence; prosecutors have asked for about 6 years.  But in itself, whether or not O’Brien apologizes doesn’t change very much.”

I know O’Brien only from the pictures taken of him entering and leaving the courthouse, wherein he always seemed grimly defiant and barely in control of his anger.  Given all that his death-match with the feds had to date cost him and his family – the loss of livelihood, savings, reputation, pension, future earning capacity, etc. – how could he be expected not to be peeved and pugnacious?

If he were ever then in the mood for apologies, I imagine O’Brien would have said he was sorry first to his wife for ever thinking it was a good idea to go on the public payroll.  The times were good when he was the King of Probation and even Ivy Leaguer judges meekly stepped out of his way.  Then The Boston Globe came calling and it all turned bad -- very, very bad.  Until yesterday. 
O’Brien’s a lot older than the passage of four or five years would otherwise suggest and he’s asking himself the old Ray Donovan question, “Which office do I go to get my reputation back?”  You don’t want to be muttering that when you’re pushing 60.

POSTSCRIPT: On Wednesday afternoon, Dec. 21, Carmen Ortiz announced her resignation. It will take effect on Jan. 13, 2017.

Here’s a link to the text of Judge Torruella’s decision overturning the O’Brien, Tavares and Burke convictions:



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