By Andy Metzger
State House News Service
BOSTON -- Federal prosecutors are dropping mail-fraud charges related to two probation hires in their ongoing trial against three former probation officials.
After a sick juror led to the trial's postponement until Wednesday, prosecutor Fred Wyshak on Monday told Judge William Young he would not be pursuing two of the 10 mail-fraud counts.
Former Probation Commissioner John O'Brien and two of his former deputies, Elizabeth Tavares and William Burke III, face 10 counts of mail fraud and one count each of conspiracy and racketeering.
The three are accused of covering up a patronage-hiring scheme, where jobs were allegedly doled out to politically connected applicants, maintaining a facade of a merit-based hiring system.
The prosecution's decision not to pursue two of the 10 fraud charges does not mean the charges are dismissed, though it will allow the prosecution to more swiftly move into the broad allegation of racketeering.
Prosecutors will no longer attempt to prove that fraud was committed when Anthony Mataragas was appointed from Middlesex Juvenile Court to Peabody District Court. Mataragas was allegedly sponsored by Senate President Therese Murray and former Senate Majority Leader Fred Berry. Prosecutors could still attempt to prove his appointment to the Middlesex juvenile court was corrupted.
Prosecutors are also dropping their mail-fraud charge related to Lisa Martin, who obtained a job at Worcester County Probate and Family Court. Martin was sponsored by a state representative, according to the indictment.
Young has required prosecutors to prove the mail fraud charges before moving on to prove the broader charge that the three operated as a criminal enterprise, committing crimes of mail fraud and bribery to keep the enterprise in business.
"Because the allegations are so wide and far ranging, one of the challenges is to define it in a way that's understandable and persuasive to the jury," said Gerard Leone, a former federal prosecutor and the former Middlesex district attorney.
Leone told the News Service prosecutors in racketeering cases often have to make strategic decisions about how many individual charges they want to try to prove, versus focusing on the racketeering count.
"I don't think one can know right now of what the significance of that is, because it sounds somewhat strategic," Leone told the News Service. He said, "In my experience, I can tell you, you usually do a prosecutorial cost-benefit analysis in making decisions like this, and strategically you normally make the decision that benefits the larger prosecution."
Tom Hoopes, a defense attorney and a fellow of the International Academy of Trial Lawyers, said prosecutors might choose to drop a charge if they foresee those charges weakening the overall case, and said it is not uncommon for prosecutors to choose to do that.
"When prosecutors do drop charges, it may certainly be because they want to make the case easier to follow. Or they may think they don't need those charges - they may think the jury has heard the point and will be bored by more of the same. But it may also be because the judge does not like the direction the prosecutors are taking the case or they themselves do not like what defense counsel are doing with the area represented by the particular charges or counts or because there are witnesses needed to prove those charges that the prosecutors now want to stay away from," Hoopes wrote in an email.
Young said he would tell the jury about the dropped charges when he gives them his "final charge" before deliberations.
The jury will have to sort out the facts of a sprawling case that involves hiring over the past decade, involving state lawmakers and members of the judiciary, among others. Defense attorneys are attempting to prove the patronage scheme was widespread and well known, and therefore no fraud was committed.
Of the eight remaining charged hires, the jury has heard substantial evidence about Patrick Lawton, Melissa Melia, Patricia Mosca and Kelly Manchester. The remaining charges concern candidates hired to the Middlesex County Juvenile Court with the recommendation of former Speaker Salvatore DiMasi, who is currently a federal inmate, and other representatives.
Wyshak said the prosecution expects to finish the mail-fraud charges this week. There have been 11 and a half days of testimony so far in the trial, which was forecast to last two months.
If the sick juror does not return Wednesday, the trial will resume without him, said Young, who said the juror believes he has the flu.
The sick juror is one of seven men on the 16-person jury, which includes four alternates. He was also one of the last four people appointed to the jury, meaning he may be one of the alternates.