Mayor Marty Walsh Declares John O’Brien Not Guilty

He calls the Probation Department case “a little bizarre.”

This is pretty stunning: on his monthly radio appearance with Jim Braude and Margery Eagan on WGBH’s Boston Public Radio show, Mayor Marty Walsh said that he thought John O’Brien was not guilty of any crime in the Probation Department patronage trial, which, of course, ended last week with the jury deciding otherwise.

Bear in mind that Walsh is now the top man in the pyramid employing thousands of government employees. He was also not only a member of the legislature during the entire period at issue in the O’Brien trial, but as of last year, he was chairman of the House Ethics Committee.

For context, I have transcribed the entire exchange below; you can listen to it at the link above, with the relevant conversation coming at around the 49-minute mark.

As you’ll see, Walsh doesn’t merely suggest that the jury got it wrong. He treats the entire episode as an indictment of innocent, harmless attempts to assist constituents find employment, which the judge and prosecutors (and ultimately the jury) made extremely clear was not at issue.

He acknowledges that hiring of public employees must be “above board” and not rigged, but does not believe that O’Brien and his deputies did that. That’s a huge public slap-down of the jurors. More important, it sends a huge signal to current and potential employees of the City of Boston that the Mayor considers the type of clearly fraudulent behavior laid out in court to be “above board.”

Finally, I have this to say to Walsh and all the other members of the state legislature who are treating this case like a direct assault on the legislature: shut up. No legislator was charged. No rank-and-file legislator was accused of criminal wrongdoing. The prosecutor over-reached in trying to prove bribery, which necessitated a claim of DeLeo’s complicity, and the jury shot that down.

For the life of me, I don’t know why the legislators aren’t treating this whole thing as a victory: the case essentially found (barring further developments) that three people in the Probation Department were committing fraud in an attempt to curry favor with legislators, who were unaware of the fraudulent activity.

Instead, the legislators themselves are talking as if their own behavior has been criminalized—as Walsh does again in the statement sent by his office in response to my inquiry:

I was not a member of this jury, and I do respect their judgment and decision. However, I feel as though elected officials have an obligation to be helpful to their constituents, including – when appropriate – assistance with employment opportunities, writing letters of recommendation for schools, and so on. This was a sad case for the Commonwealth and for Beacon Hill. I know Jack O’Brien to be a good man, and the circumstances surrounding this case and the results are distressing.

Oh, one last thing: Walsh says he has never before heard the term “unindicted co-conspirator,” which as a student of American history makes me sad and makes me want to force the Mayor to read some good books about Watergate.

Anyway, here’s my transcription:

BRAUDE: …Based on having served in the legislature, and observing the trial — I know you weren’t in the courtroom, I know you weren’t on the jury — was John O’Brien guilty of a crime?

WALSH: You know, that’s a good question. I don’t think so. Being in the legislature for so long, one of the things that I was responsible for — not responsible for, but expected of by a lot of people — was writing letters of recommendation and trying to help people with employment, just like I try to help on anything. And I think what’s happened here in this particular case, it’s sad for the legislature, trying to get out from a couple of dark clouds that they’ve been under for a decade now, trying to move beyond that. Jack O’Brien was the head of probation; his officers, clearly the two people that with him convicted; it was a sad day. I thought it was a sad day for Massachusetts. I thought it was a sad day for the legislature. I thought it was a sad day for the courts. There was testimony during the trial that certain judges wrote letters of recommendation and hired people based on people calling them. I think the system — you can’t have a rigged system. It has to be clearly above-board, because public money is going into the system. But I think it was a sad day for Massachusetts. It changes the way — that’s why people aren’t staying in politics today.

EAGAN: What you’re saying is that you don’t think rigging the system, which is what he was found guilty of, rose to the level of being criminal.

WALSH: Yeah, and I don’t see — I didn’t get all the facts of the case, so I think that’s something that I’m missing on this case. I didn’t read all the testimony, I didn’t read all the transcripts. But I just think that he went to work every day to do his job, and somehow the system got the better of him.

BRAUDE: One last thing on this. A former colleague of yours, the Speaker of the House, was not named in the opening statement. He was called an unindicted co-conspirator in the middle of the case by the prosecution. Never indicted, never given an opportunity to testify — this is obviously Robert DeLeo — what do you think of the behavior of Carmen Ortiz and the US Attorney’s office, vis-a-vis people like Robert DeLeo?

WALSH: I just think this case was a little bizarre the way it was unfolded — even what I read about the judge in the beginning, it seemed he wasn’t sure about this case. And I think the jury’s questions, they asked a hundred-and-some questions after the case was over. It just seemed like there was a lot of uncertainty around this case. And I’m going to not comment about the US Attorney’s office, they do some good work on some things. I just think that this case, it just seemed like an easy target to target the whole legislature. And I’ve never really heard that comment before, an unindicted co-conspirator, I had never heard that term before, ever.

  • FrancisMcManus

    Walsh is arguing that O’Brien is not guilty of a crime because there was no law that says rigging the hiring is a crime. O’Brien was found guilty on three charges;

    1. Racketeering, a law written to prosecute organized crime. Note that O’Brien was not charged or found guilty of ‘extortion’ or ‘conducting illegal business activities’.

    Traditionally, obtaining or extorting money illegally or carrying on illegal business activities, usually by Organized Crime . A pattern of illegal activity carried out as part of an enterprise that is owned or controlled by those who areengaged in the illegal activity. The latter definition derives from the federal Racketeer Influenced and CorruptionOrganizations Act (RICO), a set of laws (18 U.S.C.A. § 1961 et seq. [1970]) specifically designed to punish racketeering by business enterprises.

    Racketeering, as it is commonly understood, has always coexisted with business. In the United States, the termracketeer was synonymous with members of organized-crime operations.

    Congress passed RICO as part of the Organized Crime Control Act of 1970. Organized crime in the United Stateshad been increasing ever since the Twenty-First Amendment’s Prohibition of alcohol was repealed in 1933.

    2. Conspiracy

    An agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors.

    Federal statutes, and many state statutes, now require not only agreement and intent but alsothe commission of an Overt Act in furtherance of the agreement.

    3. Mail Fraud

    A crime in which the perpetrator develops a scheme using the mails to defraud another of money or property.

    IANAL but none of these laws say O’Brien et al are required to hire the best candidate and cannot knowingly deceive the pubic, including rejected applicants, about the hiring process, which is what he’s charged with but not convicted of because it wasn’t illegal. It should be illegal but it was not at the time.

    This is an “honest services” prosecution using RICO.