By Andy Metzger
STATE HOUSE NEWS SERVICE
BOSTON -- Edward McDermott, a probation department lawyer testifying with immunity in the criminal trial of three of his former colleagues, said "stretch scoring" was how he referred to the ratings he and other top probation officials would give job candidates in a final interview.
On Monday afternoon, McDermott, who said he had recently been demoted, said he was told only minutes before his first interview with a job applicant that former Commissioner John O'Brien's top choice would have to be scored highest.
"I was somewhat taken aback, quite frankly, and not too happy," McDermott told the jury.
O'Brien, whose leadership of the department ended in 2010, and two former deputies, Elizabeth Tavares and William Burke III, are facing federal charges of mail fraud for their alleged scheme to cover-up what was a patronage-based personnel policy in the department.
McDermott said he had been in charge of an interstate compact to transfer probationers, and is unaware of his current job title after a demotion. "I was demoted about five weeks ago. I don't know what my current job title is," McDermott said.
After applicants for promotion or new postings in the department made it past an interview with a judge, a chief probation officer and a regional administrator - which prosecutors contend was rigged to benefit candidates with political backing - they would be interviewed by two individuals, which could include McDermott, Francis Wall or Patricia Walsh, McDermott said.
McDermott is the second witness in the case against three officials accused of a host of charges, including racketeering, and after testimony ended Monday afternoon, Assistant U.S. Attorney Fred Wyshak objected to Judge William Young's insistence, laid out in an order ahead of the trial, that prosecutors first focus on the specific cases that constitute the mail fraud charges before getting into the wider array of alleged crimes that might help buttress a racketeering charge.
"It's very choppy and it's very disorganized," said Wyshak, describing how the prosecution's case has gone so far under the judge's strictures.
"But who's responsible for that?" countered Young, who reiterated what has become a mantra from the bench in the trial that held its opening arguments Thursday: "This is not a case about patronage hires. It simply is not."
As Young has made clear to the jury, the three are charged with covering up an allegedly secretive patronage system, pretending that policies that discourage favoritism and nepotism had been followed.
Monday afternoon also concluded the third day of testimony for former acting commissioner Ellen Slaney, who maintained that she was not testifying to avoid a potential 20-year sentence or the loss of her pension for her role in an alleged patronage scheme.
"I only learned this week that I was an unindicted co-conspirator," said Slaney, who retired as acting commissioner after 39 years in the department in 2013. Slaney said she believes all the deputy commissioners and all the regional supervisors were named unindicted co-conspirators, and said she was not promised anything in return for her cooperation.
Continuing a cross-examination that began Friday, defense attorneys peppered Slaney with questions about errors in the manual intended to govern departmental hiring, her own efforts on behalf of her niece, and the 15-minute, secondary round of interviews that Slaney claimed O'Brien corrupted by choosing candidates he wanted advanced beforehand.
"It was like speed-dating is that correct?" Burke's attorney, John Amabile, asked Slaney, who said "yes," and also acknowledged she had her own preferences before heading into the interviews.
Slaney at first agreed the interviews were like a "robo-interview" and that the information gleaned from them was "minimal" before becoming more argumentative on the stand, freighting her answers with qualifiers and pushing back against Amabile's premises. After at first agreeing with Amabile's characterization of the interviews, when questioned about her autonomy as the commissioner's representative in the process, Slaney said they are "certainly more than a robo-interview."
Slaney said she participated in seven hiring processes as a regional supervisor between 2000 and 2005, and in five of those cases she was given names - either by the human resources director, Janet Mucci, or Tavares. In her testimony, Slaney also said she would then pass along the names of the favored candidates to the chief probation officer on the interview panel, but not the judge. The three-person panel would forward the names of up to eight candidates for the final interview panel, Slaney said.
Tavares's attorney Brad Bailey previously questioned Slaney whether her passing names from Tavares to her fellow panel member was any different from Tavares passing names from O'Brien to Slaney. Slaney said she would tell her fellow panelists to make up their own minds, while Tavares wanted to make sure the preferred candidates made it through.
Slaney said Tavares in 2005 asked her to step down from the interview process - which she had already objected to - allegedly saying "they needed to get it done right."
O'Brien, Tavares and Burke are accused of offering the patronage jobs to legislators and others in positions of power in exchange for "political currency." In 2005 when Slaney participated in a panel to review seven applicants seeking the first assistant chief probation officer position at Bristol Superior Court, all three panelists preferred Mary Viera - who had the backing of former Rep. John Quinn - over Joseph Dooley, O'Brien's preferred candidate, who had the backing of Sen. Marc Pacheco, a Taunton Democrat. Dooley was eventually hired to the post.
Slaney conceded Dooley was qualified but said Viera was by far her top choice, even before the interview.
Bailey contended that Dooley's experience as a probation officer in Superior Court and the chief probation officer at Taunton District Court provided "a lot for people to look at." Viera served as assistant chief under Chief Probation Officer Eugene Monteiro, a vocal backer of Viera who was on the panel with Slaney and Judge Robert Kane.
"He indicated that he had a problem with Joe and that he wanted his assistant chief to get the promotion," Slaney said.
O'Brien's attorney Stellio Sinnis elicited from Slaney that the procedures manual in place for nearly a decade after the Legislature granted the probation commissioner appointing authority in 2001 mistakenly indicated that the chief justice of administration and management retained appointing authority. Prosecutor Karin Bell produced a letter from Robert Mulligan, the former chief justice, confirming that the appointing authority had changed in accordance with the 2001 law.
Defense attorneys attempted to depict Slaney as a departmental rival of O'Brien, who believed Ron Corbett - who became O'Brien's successor and her predecessor as acting commissioner - should have had the job, though Slaney resisted that characterization.
"I thought he was the natural progression," Slaney said of Corbett. She said she was "surprised" when O'Brien received the post, but said "disappointed" would be too strong a word. O'Brien was appointed to head up the department by the former chief justice of administration and management in December 1997.
Amabile also attempted to show that Slaney was worried about losing her pension if convicted. Bell indicated that the statute of limitations for a racketeering charge had already expired from the time of Slaney's last participation in the patronage process, and Slaney said she was unaware of both the statute of limitations and her pension amount.
Slaney also rejected the argument advanced by defense attorneys that she had used her position in the department to help her niece - previously identified as Moira Toomey. Toomey was hired to a probation position in Suffolk Probate Court after Slaney spoke to former First Deputy Commissioner John Cremens, according to Slaney, who said Toomey no longer works for the department.
"I asked that she be treated like everyone else," said Slaney, who said she was concerned her reluctance to participate in the patronage scheme had reflected badly on her niece's job prospects.
The trial broke Monday afternoon shortly after Wyshak began his direct examination of McDermott, a 58-year-old who was hired in 2004 after meeting O'Brien through his mentor Bill Kennedy, the former chief of staff to former Speaker Tom Finneran. He was granted legal immunity for his testimony June 27, 2011, according to a letter from U.S. Attorney Carmen Ortiz.