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Prosecution Criticized For Strategy In O’Brien Trial

Robert DeLeo (Eric J. Shelton/AP)

File photo of Robert DeLeo (Eric J. Shelton/AP)

BOSTON — The federal racketeering trial of three former leaders of the Massachusetts Probation Department ended Thursday with convictions for all three defendants.

But even though prosecutors allege state lawmakers were “bribed” with the opportunity to hand out state jobs, jurors did not conclude there was any bribery. And no state lawmakers were ever charged.

The biggest question at the end of the trial circled around the House Speaker Robert DeLeo, and the government’s allegations that he was a central figure in the crimes committed by the former probation commissioner, John O’Brien.

The Unanswered Question

So why didn’t the government ever put DeLeo on trial in a courtroom?

“I’m going to rely on what was presented in court because that’s where cases get tried in this office: in a courtroom and not here in front of the media,” U.S. Attorney Carmen Ortiz said to reporters after the trial.

Not appropriate to comment, said Ortiz, but others, including some former federal prosecutors in the same office, question why it was appropriate for prosecutors to tell jurors that DeLeo was working alongside O’Brien to bribe fellow legislators when they had never charged DeLeo.

“It’s just an extraordinary step away from normal practice and normal fairness,” said former federal prosecutor Daniel Small, who once worked in the public corruption unit and is now with the firm of Holland & Knight. “The Department of Justice guidelines call for prosecutors to be understandably very careful in making any unnecessary public references to uncharged parties, because an uncharged party has no rights to come into court and defend themselves.”

DeLeo might have thought he was out of trouble with the probation department scandal back on July 23 of last year. That’s the day his attorney, Robert Popeo, says he got a phone call capping several meetings with federal prosecutors here in Boston.

“I was told by the chief of the political corruption unit when we had our final conversation that a decision had been made not to indict DeLeo,” Popeo said.

That meant everything, says Popeo, because that was the last chance the government had to indict DeLeo.

“If they didn’t indict him then, the statute of limitations would expire, so they couldn’t indict him,” he said.

And Popeo is quick to claim that the government did not have a case.

“Either they had the evidence upon which to go forward or they didn’t, and from my perspective it is clear that they did not,” he said.

At the key meeting, says Popeo, were lead prosecutor Fred Wyshak, the first assistant, and Brian Kelly, the head of the public corruption unit. Kelly, who is now in private practice, could not be reached for comment. And Ortiz would not answer the question.

“It is clear the government either believed that he was not guilty of any criminal misconduct and/or that the government did not believe it could prove any violation of law beyond a reasonable doubt,” said Mark Pearlstein, a former acting U.S. attorney in Boston.

‘An Extraordinary Surprise And Shock’

One year later, in the trial of the three probation administrators, prosecutors wanted to show a jobs-for-votes scheme. Thanks to O’Brien, they alleged, legislators were given the opportunity to hand out jobs in return for votes to make DeLeo House speaker in 2009.

The prosecution had one witness, former O’Brien aide Edward Ryan, who testified that an aide to DeLeo told him probation jobs were being traded for pro-DeLeo votes.

That testimony by Ryan about what he was told would normally be considered hearsay. And hearsay is not admissible, except in the case where co-conspirators are furthering a conspiracy.

So the government named DeLeo’s aide, Leonard Mirasolo, an unindicted co-conspirator to take advantage of the exception. And thus, Ryan’s testimony was admitted.

“Len Mirasolo testified before the grand jury, under oath with immunity,” Popeo said. “He denies that that meeting ever took place or that they ever selected representatives to give jobs to on the basis of votes.”

But Mirasolo was never called as a witness at this trial. Meanwhile prosecutors also identified DeLeo as an unindicted co-conspirator.

“There argument is that they needed to get the co-conspirator hearsay into evidence,” Pearlstein said.

Otherwise they would have to drop their allegations of bribery. Late in the trial and after all the testimony, the prosecution now claimed DeLeo was at the center of it all next to O’Brien, an allegation it never made in opening statements to the jury or even in the O’Brien indictment. The new theory was that DeLeo was not receiving bribes but giving bribes by handing out jobs.

“Normally an unindicted co-conspirator is someone at a lower level,” Small said. “The notion that the unindicted co-conspirator is the higher level person is just an extraordinary surprise and shock here.”

The Context For The Crime?

DeLeo is the successor to three consecutive speakers who have all been targeted by federal prosecutors. So now, he was in the soup of public suspicion.

“I am calling upon, whether it’s the federal prosecutors or anyone else who would make such a statement, to cease to make those types of statements because they are untrue,” he said.

“From Speaker DeLeo’s point of view it is very unfair,” Pearlstein said. “His reputation has been attacked, and he has no mechanism, other than statements in the press, to attempt to defend himself. He’s got no way to intervene in the case, to present evidence or to otherwise exonerate himself.”

DeLeo had already testified under oath and without immunity before a special state court-appointed investigator Paul Ware. He was expecting to be called to this trial.

“He was ready, willing and able to testify when called,” Popeo said.

But the prosecution never called DeLeo to the stand.

Ortiz denies criticism that her office was unfair and overzealous in making allegations at trial about the man her office had earlier decided not to prosecute Speaker DeLeo.

“When you have a conspiracy such as this and you’re presenting evidence, you’re not trying people in a vacuum,” she said.

For DeLeo, and many people dubbed unindicted co-conspirators in other cases, being considered the context for the crimes and not the defendants comes as no comfort.

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