The headline on the front page of today’s Globe pretty well sums things up:
Questions rise of why no lawmakers were charged
The headline on the same article in the online version is even worse:
Probation case focus on lawmakers may backfire
Some wonder why legislators not indicted
What’s going on? This:
Last week, prosecutors focused on [Speaker Robert] DeLeo, accusing him of quid pro quo bribery by doling out legislative favors in exchange for probation jobs for friends, including those of legislators whose vote DeLeo was seeking in his bid for House speaker.
The focus on DeLeo has renewed questions about why — if legislators accepted jobs for their friends in exchange for votes — no legislators were sitting at the defense table.
“If this is a bribery case, how come this person isn’t charged?” Stephen G. Huggard, a defense attorney with Edwards Wildman and a former federal prosecutor and former head of the US attorney’s public corruption unit in Boston, asked of DeLeo. Huggard questioned the fairness of accusing DeLeo of quid quo pro bribery if US Attorney Carmen Ortiz chose not to indict him….
The strategy of alleging that the probation officials’ scheme went as far as bribing legislators could backfire for prosecutors if jurors don’t see anyone being held accountable on the other end of the alleged bribe, analysts said.
“It’s a wider, overarching theory of a crime, and if the prosecutors are dependent on a quid pro quo theory, the defendants will drill home that there’s no proof that any public official participated,” said Martin Weinberg, a prominent defense attorney from Boston. “The government has to prove what it charges.”
Of course, the jury might convict. But all reports are that the presiding Judge has seemed skeptical of the government’s case, repeatedly cautioning the jury that patronage is not a crime, and not giving federal prosecutors the leeway they wanted in questioning witnesses. It remains to be seen exactly how the judge instructs the jury, and exactly what they do, but it’s easy to see how they might be very skeptical of a supposed bribery case in which only one side of the bribe is charged with anything.
If they acquit everyone, what an enormous embarrassment for Carmen Ortiz and the entire U.S. Attorney’s office.
The entire affair is an enormous embarrassment for state government.
I’m sorry, but “patronage is not a crime” may be literally true, and may derail the prosecution’s attempted conviction, but it does not make the entire sorry mess any more palatable.
The fact remains that Probation Department employees are key players in keeping our society safe. We depend on them to keep men and women who remain dangerous off the street, and to allow men and women who are not dangerous to be freed.
Whether or not any convictions result from this prosecution, it is clear to all that far too many utterly incompetent patronage hires filled these key roles — including a convicted drug felon who was later fired after relapsing into his out-of-control habit.
I remember commenting here months ago that not charging Mr. DeLeo, Ms. Murray, and the other high-ranking legislators who participated in this tawdry mess is analogous to the long-standing practice of not prosecuting customers of sex workers.
The entire scandal is a black mark on Massachusetts government, and will remain so for as long as we tolerate it. Even if no criminal convictions result, the bottom line remains the same:
Massachusetts government has a pervasive culture of corruption.
If there’s a pervasive culture of corruption, then the prosecutors are justified in grasping at whatever they can, to change that culture. In other words, even absent convictions, the potential embarrassment of a trial and the chilling effect that has can be justified.
I don’t think we’re there. MOST of state government is perfectly honest, and I’d rather our prosecutors, across all levels, act with their best judgment and when they believe actual crimes have occurred.
We were certainly “there” with the Probation department (where “there” means that the shame and embarrassment of this trial will hopefully have a chilling effect on repetitions). As far as I know, the disability/pension racket for Boston police and fire continues unabated.
I understand that most of state government is honest. I’d still rather our prosecutors be first, rather than the last, to know of situations like the Annie Dookhan scandal, Michael McLaughlin, and the MBTA pension fund abuse.
If you must advocate using the prosecutorial power of the police state to threaten people with incarceration for things that are NOT ACTUALLY CRIMES, all in order to expose a pervasive culture of corruption, then you have essentially admitted systemic failure on the part of your government, because you have admitted that it cannot fulfill the basic functions of government.
If this is not a crime, then it is the sort of thing that should come out in legislative hearings, not by threatening people with incarceration for things that are not crimes.
I was riffing on Tom’s premise of a culture of corruption, to make a point. I do not believe we have a culture of corruption. My point was, IF WE DID, then the courts would pretty much be shot anyway, and any action that pointed toward reform would be a plus.
I am not sure that it could be possible for me to disagree with you more comprehensively.
First, the manner in which the Commonwealth’s probation department, as revealed in this trial, in my view most definitely reveals a culture of corruption. If that isn’t enough, there were three (3) consecutive– consecutive!!– Speakers of the House who were convicted of criminal corruption. Just because it doesn’t seem to be a crime doesn’t mean that the system that has come to light is anything other than odious. The fourth guy in line is the present occupant, who seems to be conspicuously missing from the dock in this trial. That’s quite a streak, and if it doesn’t show a culture of corruption, then there is no such thing. The apparent lack of political consequences for anyone reinforces my belief that much of the corruption stems from the complete lack of meaningful political opposition in this state.
Second, “any action that points to reform” is in my view most definitely not a “plus” and is instead something of a significant “minus.” Once you start threatening citizens with imprisonment for something that is not actually a crime, in the service of some political end– even a noble political end, you have left the realm of liberal democracy and entered the realm of the illiberal police state.
I am as shocked at the cavalier attitude here toward political prosecutions, evidenced here and in the long ago defense of prosecuting the lite-brite terrorists to “raise awareness.”
I don’t get where you’re coming from. My first comment reads, in part:
If someone is given sole hiring authority then it’s rather difficult to question why someone is hired. Should there be an approval process, a civil service exam, and absolute prohibition on legislators writing recommendations? I’m not sure – just throwing out some ideas. Until then if a particular person is authorized to hire his underlings then I don’t think there is anything to be done when he exercises that authority.
Let’s make a hypothetical. A guy works for years running campaigns or field operations for state legislators for office and all of them win. He worked 60-70 hour weeks for candidates, more when elections approached, proving himself capable in many myriad ways. He likes the job, but at some point realizes he needs something a little more consistent, that pays better – and has more reasonable hours.
There’s a job that pops up that would be good for him and he’s fully qualified and thinks it would be a great fit – so he does what any normal person would do, at least if still on good terms, and asks for a recommendation from his old boss or bosses. It just so happens to be, in this case, his old boss or bosses are now state legislators.
He doesn’t always get the job he wants, like anyone else, but in this case he got it.
Is that really scandalous political corruption?
Some could call that “patronage,” and I suppose that would be accurate, but it is really nothing but a recommendation.
There are a lot of people who work for state legislators, be it legislative staff or campaign staff. Neither are paid particularly well and both are usually asked to work long, hard hours, often far more than they’re actually paid for.
It’s a little insulting to suggest they shouldn’t be able to ask for a job recommendation from their former employer – and even more insulting to suggest that doing so is tantamount to political corruption.
Jobs for votes is illegal and wrong. If that happened, those who did it should be punished – but as David notes, the government hasn’t made a very strong case.
But “patronage” happens in every industry, yet in most cases we just call it a job recommendation and no one bats an eye.
Recommendations from friends and colleagues play a role in any hiring process, I enthusiastically agree with that.
That’s not what we’re talking about here. Nobody disputed that Mr. O’Brien set up a patronage mill with forged scoresheets, punishments for not going along, and dozens of unqualified people being hired.
This was an ugly, smelly, unadulterated jobs mill. That’s just a fact, and it was corrupt.
It seems that, for the most part, the probation jobs in question were going to shiftless relatives of legislators, campaign donors, and maybe even shiftless relatives of campaign donors. Not to people who had proven their work ethic or capability at anything in particular.
the way the US Attorney has gone about this may well have exactly the opposite effect you describe. If the jury indeed acquits everybody, why wouldn’t they wear that acquittal as a badge of honor – as a demonstration that they “did nothing wrong”? If I were in their shoes, that’s exactly what I would do. It would make it less likely that things will change, rather than more, IMHO.
I have no doubt that this will play out as you describe — Mr. DeLeo’s protestations are already headed in that direction.
Nevertheless, the corruption is there and has been proven (nobody disputes it). I’m reminded of an apocryphal aphorism in my industry: “A ‘feature’ is a documented bug”.
This sorry spectacle confirms that Massachusetts government indeed has a pervasive culture of corruption. I ruefully agree with you that we can now expect that corruption to get worse rather than better.
And, an even better comment, David. The law of unintended consequences may come into play here. O’Brien is a sleazy, public servant who should have been fired and publicly humiliated. His conduct is not normal, everyday patronage. However, and this is the key, not all bad government is a federal crime. That’s the case here. The case doesn’t rise to the level of federal criminal conduct. It’s abhorrent government that should not be tolerated, but there are ways to cure that problem other than federal prosecution. A US attorney with a strong grasp of fact and law should not have allowed this case to go forward. Ortiz was a weak AUSA and is a weaker US attorney. She has an admirable personal background, and it’s easy to root for her success but she’s not up to the job. Judge Young should direct a verdict against the government but he will probably let the jury return a verdict even if he is not too fond of the government’s prosecution. Even if a guilty verdict is returned, hopefully Judge Young will toss it out.
Isn’t “abhorrent government” the province of the Attorney General?
That’s the point. Crime is the province of the US attorney. Abhorrent government is the province of voters, and public officials (elected or otherwise) who won’t put up with abhorrent government. Do they overlap? Of course, from time to time, but not always.
I’m not at all sure there is.
Say the prosecution has its heads handed to it. 3 cheers for the criminal justice system, but what prospects for reform? How long before there’s another probation-dept-level scandal?
Is it even possible to outlaw that level of patronage? I think it should be.
Seems to me this is Governor-level stuff and I hope the hopefuls are ready with more than lip service. It could knock casinos out of the race as an issue.
Criminal law requires that the crime be proven beyond a reasonable doubt. Seems to me there is plenty of doubt as to whether a crime even occurred. Very messy airing of the dirty laundry of state government. very distasteful and disgusting, but criminal? Not clear. If as the director of a state agency, I hire the nephew of a state legislator because I am looking out for my budget, is that criminal or a management strategy. Patronage is as old as time itself in both the private and the public sector and let’s not think that the patronage hiring in the private sector does not impact tax paying citizens who also pay for the products and services of private industry. The intervention in the problem of patronage is to link it to bad outcomes and then there might be a collective interest in making changes.
there should be a presumption that the officer is not qualified, and is experienced in forging evidence and falsifying documents.
And since this type of patronage is so pervasive, I guess we could apply that presumption to everyone who works for the state.
I would argue for this to be a statutory presumption, since judges are part of the system and can’t be relied on to make this determination case by case.
The other approach would be to take this kind of corruption seriously and attack it wherever we find it. I hesitate to suggest this, though; it sounds so impractical.
It is troubling that DeLeo and Murray have so little concern for the criminal justice system, publc safety, etc that they could treat this department as a patronage farm or whatever. Remember the huge issue with the Parole Board when Officer Maguire was killed? Certainly with so many dubious characters working for probation at DeLeo and Murray’s behest there is unlimited potential for similar disasters involving poorly supervised/counseled probationers.
And I think “because he/she knows someone in the legislature” should be the enough reason to hire someone.
In fact that should be the hiring standard throughout the state.
Clearly that is what our legislators believe, as well as many others in state government.
But, DeLeo is right about one thing. He’s being labeled a co-conspirator so that the government can introduce statements that would otherwise be inadmissible hearsay. Young should have ruled that the government hadn’t met the threshold for showing that DeLeo was a co-conspirator and ruled the statements inadmissible.