Successfully Overturns Corruption Charges in the District Court

Yesterday, the First Circuit Court of Appeals issued a decision vacating the convictions of John O'Brien, Elizabeth Tavares, and William Burke, the former heads of Massachusetts' entire Probation Department. I represented Ms. Tavares during her trial in the District Court, and I am proud to see that justice has finally been done for her.

O'Brien and Tavares were convicted of violating the Racketeering Influenced and Corrupt Organizations (“RICO”) statute. RICO is a complicated area of law that requires the government to prove that the defendants committed so-called “predicate acts” (fancy word for a certain class of crimes) in furtherance of a racketeering enterprise during a certain period of time. Unfortunately, the predicate acts O'Brien and Tavares were convicted of were for alleged (and ultimately unproven) violations of the federal mail fraud statute. O'Brien was also convicted of violations of Massachusetts' state gratuity laws.

The First Circuit's decision, authored by Judge Juan Torruella, started with a bang in its opening paragraph: “We find that the Government overstepped its bounds in using federal criminal statutes to police the hiring practices of these Massachusetts state officials...” In other words, the Federal Government can't use the federal criminal statutes in order to enforce its vision of government conducted by local and state officials.

As for the mail fraud allegations, the First Circuit determined the government did not satisfy the most basic element of the offense: that the mails were used in furtherance of a fraud. This was precisely what I argued on behalf of Ms. Tavares before the trial court; unfortunately, it took another 2 years before another Court endorsed my analysis. Importantly for Ms. Tavares, and as I steadfastly argued throughout the entire time I represented her, it appears the First Circuit was also skeptical of the idea that any fraud actually occurred. For example, at the outset of its mail fraud analysis, the Court stated “[e]ven assuming that there was 'a scheme to defraud'”... The single word “even” in the beginning of that sentence speaks volumes.

Although the First Circuit did not rest its decision on this issue, the Court dedicated a section to the use of juror questions throughout the trial. In the vast majority of trials, jurors do not ask any questions of the witnesses. In this trial, however, the jurors were permitted to submit written questions to the judge; a total of 281 questions were submitted and approximately 180 were posed by the judge. At the end of Ms. Tavares' trial, I argued that she should receive a new trial as a result of this practice because it effectively turned the jury, which is to remain impartial throughout the entire trial, into an inquisitive body. It also had the effect of helping the Government gap-fill all of the evidentiary holes defense counsel poked in their case. This is a problem since the Government, and the Government alone, carries the burden of establishing guilt. The jury therefore became a “sixth man” for the Government which greatly prejudiced the defendants. The First Circuit agreed with my assessment. Listen to an interview conducted by WBUR in which I answer questions regarding the overturn of these convictions.

At the end of the day, the First Circuit ordered the district court to enter a judgment of acquittal on behalf of all 3 defendants. It is my prediction that this is the end of the unfortunate and unfounded allegations brought by the federal government against these 3 civil servants. This opinion by the First Circuit is firmly rooted in long-standing precedent from its own prior decisions as well as the Supreme Court of the United States. Further appellate review in this context, while not impossible, would be extraordinarily surprising.

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