Boston Herald: RICO charges in probation scandal spur debate

By Laurel J. Sweet
Monday, March 26, 2012

U.S. Attorney Carmen Ortiz’s brandishing of RICO - a powerful federal weapon used to crush mobsters and violent motorcycle gangs - to prosecute former state officials in the Probation Department for kowtowing to legislators’ patronage demands has triggered a debate that some predict could be headed for the U.S. Supreme Court, over whether traditional politics in Massachusetts rises to the level of racketeering and a potential 20 years behind bars.

Ex-Commissioner of Probation John "Jack" O’Brien, Elizabeth V. Tavares and William H. Burke III were charged with racketeering and mail fraud in federal indictments unsealed Friday that accuse them of operating a "rigged," decade-long patronage hiring and promotion scheme to keep happy the politicians on Beacon Hill in charge of the money.

"The indictment speaks for itself," Ortiz’s office said in a statement yesterday, declining to comment further.

But O’Brien’s attorney Paul K. Flavin said, "To suggest that these three individuals were operating a criminal enterprise because recommendations were made for employment … This is a culture. When there’s money in an envelope in a handshake, that’s when patronage is illegal."

Tavares’ attorney, R. Bradford Bailey, vowed they will go to trial. "We’re going to challenge the government every step of the way on their theory of prosecution," he said.

Decrying the charges against O’Brien and his two top deputies "a fraud on the public," Cambridge constitutional lawyer Harvey Silverglate, who is not involved in the case, predicted yesterday the explosive case eventually will land before Supreme Court justices, "who will have to draw a line in the sand between politics and crime."

Silverglate told the Herald that "the idea of pressuring politicians for favors, I’m sure, goes back to George Washington. Guess what the solution is? The voters."

The Racketeer Influenced and Corrupt Organizations Act of 1970 was first used to attack organized crime syndicates such as the Mafia by taking out their leaders. With its significantly enhanced sentences and forfeiture penalties, Silverglate said RICO has the chilling effect of pushing "innocent people" to cop plea deals.

University of Notre Dame professor G. Robert Blakey, a former federal prosecutor and a leading authority on RICO, said he has a bumper sticker, "Fight Organized Crime: Don’t Re-Elect Anyone." But he said political corruption is what RICO is used to prosecute most, followed by drugs and fraud in the private sector.

"The statute applies to any person," Blakey said. "As a general matter, (jurors) aren’t going to think it’s overreaching. Each and every one of them knows how corrupt your politicians are, and now they’re going to have a chance to stand up and be counted on it."