Prosecutors: DeLeo Part of Conspiracy to Commit Racketeering in Probation Trial

Fate of former Mass. probation commissioner, deputies will soon be in the hands of jury

After 35 days of evidence and testimony, the fate of former Massachusetts probation commissioner John O'Brien and his two deputies, Elizabeth Tavares and William Burke, will soon be in the hands of the jury.

Judge William Young denied a defense motion to dismiss the case Monday because of what defense attorneys described as a lack of evidence, and now closing arguments and jury instructions are set for Tuesday morning.

"The judge still said he reserves the right to throw out the case if they find a guilty verdict," NECN legal analyst Randy Chapman said.

Judge Young made it clear to jurors early on that patronage is not a criminal offense; therefore, according to Chapman, federal prosecutors have a difficult case to prove.

"So now the government's real theory is that they created a rigged hiring process that was being held out as a legitimate hiring process  when in fact it wasn't," Chapman said.

O'Brien, Tavares and Burke are accused of racketeering and mail fraud for hiring politically sponsored job candidates in exchange for legislative benefits for the Probation department. Judge Young says he will charge the jury if it turns out that a person hired on a political basis was the most appropriate candidate for the job - that that is not fraud. The judge will also tell the jury that it is okay for people in public life to make job recommendations.

"The Judge now has to try to decide whether or not, in fact, the person who was hired was unqualified and that's very difficult because when you hire someone, there are a lot of intangible qualities," Chapman said.

Chapman also points out that the jury may be confused as to why lawmakers, such as House Speaker Robert DeLeo, are not on trial, when the federal government was trying to prove a quid pro quo between O'Brien and DeLeo - a charge they reiterated in court Monday - they believe is true.

In a statement, DeLeo said, "Today the United States Attorney alleged that I engaged in a criminal conspiracy. Since a conspiracy is an agreement to do an illegal act, the question must be asked: With whom did I conspire? When did I so conspire? And what evidence is there linking me to such a conspiracy?  The government cannot answer these most basic questions. This allegation is nothing more than desperate legal strategy to allow the government to admit hearsay evidence from an unreliable source."

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