Carmen Ortiz: Prosecution for Political Ego?

Submitted by: Mike Spindell, guest blogger

HK_Central_Statue_Square_Legislative_Council_Building_n_Themis_sOne of the main concerns we Americans should have is about the state of our criminal justice system. How a society deals with the issue of criminality is one of the ways that we all can judge its freedom from oppression. This country has been selling our “democracy” to the world for 8 decades now as an example of how a modern nation should operate. Throughout the “Cold War” there were innumerable comparisons made between American freedom and the “Police States” of communism. Last year when I was writing an article on “The Incarceration of Black Men in America” I was surprised to discover that the United States has the highest incarceration rate in the world. That we put people in prison at a significantly higher rate than any other country and that include Russia and China. The responsibility for charging criminals and prosecuting the cases against them fall to Prosecutors at all levels of government. The U.S. Attorneys for various States are among the most powerful of prosecutors, with the widest resources to investigate possible criminal activity. We also know that quite often these U.S. Attorney positions are valuable stepping stones for those with deep political ambitions. Rudolph Giuliani is probably the most famous of these today, but in the past Thomas E. Dewey parlayed it into Governorship of New York and then a failed run for the Presidency in 1948. In both those instances their reputations were built upon prosecuting high profile defendants.

Until about two weeks ago the name of Carmen Ortiz, the U.S. Attorney for Massachusetts, was an unfamiliar name. The suicide of computer whiz Aaron Swartz, linked to her threatening him with a number of charges that could have led to 50 years in prison, has made headlines that brought her name to the forefront of our news cycle. Swartz’s suicide resulted in much outrage and even led to two widely commented upon blogs by Jonathan Turley our host” and:  It even inspired my own guest blog:  By all accounts Ms. Ortiz has strong political ambitions and managed to receive much favorable publicity in Massachusetts. I want to look at some of her cases that led her to prominence and the fact that their prosecution may have been more self-serving, rather than examples of protecting the people from the criminality amongst them.

Russ Baker’s website that does excellent investigative reporting, ran a story about Ms. Ortiz By Christian Stork on Jan 17, 2013, titled: “Carmen Ortiz’s Sordid Rap Sheet”  My thanks to the author and his excellent column which I am using for background for this guest blog. My contention though, is not that Ms. Ortiz is the worst of her prosecutorial profession, nor even that she is an evil person. I believe that she has thrived in a prosecutorial culture that has self righteously used prosecution for personal political gain with an ability to self-justify their behavior in terms of the public good. She is unfortunately not the exception to the rule, but actually represents some normative prosecutorial behavior. This isn’t about “evil” people abusing the Law and their powers, but about people who are acting in consonance with the system they’ve joined and are negotiating that system in a timeworn manner. Too often in today’s insane political scene we ascribe malefaction to “good” or “evil”. As long as we use these emotion loaded terms we prevent ourselves from understanding the systemic problems that are at root and therefore handicap ourselves to dealing with the problems.

“The details of the Swartz case are so suggestive of prosecutorial abuse that they have already led to widespread condemnation of Carmen Ortiz and (her cohort) Stephen Heymann. However, what’s missing from much of the expressed outrage is recognition that the “bullying” tactics employed by Ms. Ortiz are standard operating procedure for federal prosecutors when pursuing criminal cases.”

As Mr. Stork puts it “bullying” tactics are indeed standard operating procedure in criminal prosecutions. This is not a “hidden” fact but one that is out in the open and in fact shown daily on many of our most popular TV crime shows. This “bullying” is actually almost always put in a positive light. Overcharging in a case to obtain a pleas bargain happens in more than 90% of all criminal cases. We’ve commonly seen what would be manslaughter cases, like Casey Anthony’s where there was no conclusive evidence of premeditation, charged as a Capital Crime. The prosecution frames this overcharging in their more famous cases with the kind of moral fervor that stirs up the public, who then become disappointed when the “plea” is made to a lesser charge and tend to blame our “lax” legal system for being unable to punish “evildoers” as harshly as they should be punished.

The Great Heist of Tewksbury

With a population just under 30,000, the town of Tewksbury, Massachusetts, is hardly considered ground zero for federal drug trafficking crimes. Just off Route 38, the town’s only major thoroughfare, sits the modest Motel Caswell. With just six reviews on—one “Poor” and five “Terrible”—even defenders of the $57 per night operation admit its shabby digs: “The Motel Caswell isn’t the Ritz,” its lawyer told a federal courtroom in November 2012. But that didn’t stop the Drug Enforcement Administration (DEA) and Ms. Ortiz’s office from trying to seize its assets” In 2009, the 69-year-old owner, Russ Caswell, received a letter from the DOJ indicating the government was pursuing a civil forfeiture case against him with the intention of seizing his family’s motel—it was built in 1955 by Russ’s father—and the surrounding property. Ms. Ortiz’s office asserted that the motel had been the site of multiple crimes by its occupants over the years: 15 low-level drug offenses between 1994 and 2008 (out of an estimated 125,000 room rentals). Of those who stayed in the motel from 2001 to 2008, .05% were arrested for drug crimes on the property. Local and state officials in charge of those investigations never accused the Caswells of any wrongdoing.

Nor is the U.S. attorney charging Russ Caswell with a crime. The feds are using a vague but increasingly common procedure known as civil asset forfeiture. In criminal forfeiture, after a person is convicted of a crime the state must prove that the perpetrator’s property had a sufficiently strong relationship to the crime to warrant seizure by the government. In civil forfeiture proceedings, the state asserts the property committed the crime, and—under civil law—the burden of proof is on the defense to demonstrate their property is innocent.

“I’ve found…I’m responsible for the action of people I don’t even know, I’ve never even met, and for the most part I have no control over them,” Mr. Caswell told WBUR Boston. “And when they do something wrong, the government wants to steal my property for the actions of those people, which to me makes absolutely no sense. It’s more like we’re in Russia or Venezuela or something.”

 According to the sworn testimony of a DEA agent operating out of Boston, it was his job to comb through news stories for properties that might be subject to forfeiture. When he finds a likely candidate, he goes to the Registry of Deeds, determines the value of the property in question, and refers it to the U.S. attorney for seizure. It is DEA policy to reject anything with less than $50,000 equity.

In other cases, that DEA agent testified, the property is brought to his attention by local police departments. He could not recall whether Mr. Caswell’s case was brought by local authorities or picked by his own research. Christina DiIorio-Sterling, a spokesperson for Ms. Ortiz’s office, maintained in an interview that local police brought the case to DEA. But if Tewksbury’s Finest suspected crime was occurring on specific property, why not initiate an investigation themselves? Why simply hand a case like that over to the feds?

 Through a policy known as equitable sharing, “the federal government has the discretion to dispense 80%” of the proceeds of liquidated seized assets “with the local authorities [that] cooperate,” Larry Salzman—attorney for Mr. Caswell—told WhoWhatWhy in an interview. He maintains this provision creates a perverse incentive to initiate such proceedings, even when the investigating authorities have no reason to suspect criminal wrongdoing. “It’s obvious it turns the American idea of innocent until proven guilty on its head.”

 When asked about the possibility of an 80% haul that Tewksbury PD stood to gain from the liquidation of Mr. Caswell’s property, Ms. Sterling responded that such processes are referred all the way up through the Department of Justice (DOJ), before any arrangement with local authorities is negotiated: “The equitable sharing process is a lengthy one.”

Perhaps I’m too obtuse to understand the fine points of how this seizure of assets results in the public good, due some obtuseness of which I’m unaware. In my admittedly laymen’s opinion the entire concept of “Civil Asset Forfeiture” is un-constitutional. Its’ use in this instance is a clear case of overreach by Ms. Ortiz office. Yet my knowledge of the human psyche is such that I guarantee that hooked up to a lie detector and justifying this forfeiture as a matter of public good, she would pass with flying colors. The is an example of the current prosecutorial culture, driven by ill thought out campaigns such as the “War on Crime”, the “War on Drugs” and the “War on Terrorism”. Some may disagree, but my gut instinct is that excesses such as these are driven by normal people operating in the vacuum of an irrational system driven by mythology, rather than reality.

“The Kingpins of Patronage

In March 2012, former Massachusetts Probation Commissioner John J. O’Brien was indicted by a federal grand jury under the Racketeer Influenced and Corrupt Organizations Act (RICO). With two of his former deputies and alleged co-conspirators, he was charged with “one count of racketeering conspiracy and 10 counts of mail fraud,” according to The Patriot Ledger. Each of the 11 counts carries a sentence of up to 20 years.

 The lengthy indictment alleges that the three ran a hiring system for the Massachusetts Probation Department that gave preference to friends and family members of certain legislators and politically connected prospects. Those aforementioned counts of mail fraud consisted of “sending rejection letters to applicants they knew from the start they weren’t going to actually consider.” By this standard, any boss who ever hired a friend’s child—yet sent letters to other applicants in which he claimed they were considered before being rejected, as per standard hiring procedure—has committed mail fraud.”

I have no idea whether or not these men are guilty of malfeasance and corruption. What I do know though is that the ten counts of Mail Fraud, with a possible sentence of 200 years are bogus. We have seen too many instances to delineate where “mail fraud” of this simple nature and tortured interpretation has been used to overcharge defendants in the service of getting plea bargains. Is this how we really want our criminal justice system to operate?

“Enacted in 1970 to enable prosecutors to convict leaders of criminal organizations who order subordinates to commit crimes but who are never themselves at the crime scene, RICO statutes have most widely been applied to drug cartels, the Mafia, and terrorist organizations. The logic is simple: if a mob kingpin orders a hit on someone, he has a strong First Amendment case that he isn’t at fault for the murder. Under RICO, the government only needs to prove a relationship between murderer and kingpin within an ongoing criminal organization.

Mr. O’Brien and his co-defendants are also under indictment for violating state campaign finance laws. But those are charges being brought by the Attorney General of Massachusetts, Martha Coakley, and are unrelated to the federal indictments issued by Ms. Ortiz’s office.

It is the job of prosecutors to bring malefactors to justice with tools appropriate to the alleged offenses — for example, RICO vs. the Mafia or al-Qaeda. But excessive prosecutorial zeal that regularly aims the biggest guns in the government’s arsenal at the smallest fry can only undermine public support for the justice system itself.  In cases like that of John J. O’Brien and Aaron Swartz, U.S. Attorney Carmen Ortiz’s penchant for bringing disproportionate charges intended for serious criminals against defendants who pose little or no threat to the public’s well-being suggests either puritanical vengeance or brazen self-promotion.”

Probably I am in the minority in believing that RICO Laws violate the spirit of our Constitution. They came about when there was perpetrated the great organized crime scare that originated from the raid on the Cosa Nostra’s meeting in Apalachin, NY in 1957, at a time when J. Edgar Hoover denied the existence of organized crime.  After the arrests and prosecutions coming from that meeting and the testimony by Joe Valachi (Joe the Rat) at  Senator McClellan’s Senate Committee on Organized Crime in 1962 there was publicity created public clamor for government to stomp out the danger of organized crime. Because this was sometimes difficult RICO laws were passed to facilitate these prosecutions and in the popularity of satisfying the public clamor, Constitutional Issues were cast to the side. I’m not a fan of organized crime, who can be, but I’m bemused why nobody has mentioned using RICO to deal with the fraud perpetrated by the “too big to fail” Investment Banks. Surely the seizure of their assets would seem appropriate in the light of what has become known about their operations?

Speaking While Brown (and Bearded)

Now consider the case of Tarek Mehanna, a Massachusetts pharmacist sentenced to 17 years in prison after being convicted in 2012 of supporting al-Qaeda and conspiring to kill U.S. soldiers in Iraq. Ms. Ortiz’s office claimed in the indictment that Mehanna travelled to Yemen with the intent of joining a terrorist training camp — although he never found one.

Upon returning to the U.S., prosecutors allege, Mehanna translated documents written by members of al-Qaeda and posted YouTube videos in support of suicide bombings. The 2010 Supreme Court case Holder v. Humanitarian Law held that “protected speech can be a criminal act if it occurs at the direction of a terrorist organization.” Mehanna was eventually found guilty, although no causal relationship was established between his controversial advocacy against American foreign policy and direction by a designated member of al-Qaeda.

Although her office failed to win the 25-year minimum sentence she had requested, Ms. Ortiz said that Mehanna “faced the consequences of his actions, for conspiring to support terrorists, for conspiring to kill Americans overseas, and for lying to the FBI.” At his sentencing hearing, Mr. Mehanna claimed he was being persecuted for not cooperating with the FBI, which had pressured him to join its sprawling, thousands-strong network of paid informants and provocateurs (the prime source of most federal terrorism indictments since 9/11):

As I was walking to my car I was approached by two federal agents. They said that I had a choice to make: I could do things the easy way, or I could do them the hard way. The “easy ” way, as they explained, was that I would become an informant for the government, and if I did so I would never see the inside of a courtroom or a prison cell. As for the hard way, this is it. Here I am, having spent the majority of the four years since then in a solitary cell the size of a small closet, in which I am locked down for 23 hours each day. The FBI and these prosecutors worked very hard — and the government spent millions of tax dollars – to put me in that cell, keep me there, put me on trial, and finally to have me stand here before you today to be sentenced to even more time in a cell.

As I pointed out in an article discussing the assassination by drone strike of American-born cleric Anwar al-Awlaki, legal precedent holds that independent political speech—no matter how heinous and suggestive—is protected unless it passes the Brandenburg test of inciting imminent lawless behavior. According to this reading of the law, whether Mehanna simply agreed with al-Qaeda’s message and promoted his own views in that vein or was deliberately ordered to do so by al-Qaeda members, he was still engaging in constitutionally protected speech.”

Now I would hasten to say that Mr. Mahanna is not exactly someone who could be described as a “solid citizen”. However, reading this case we can infer that the man was being prosecuted far more for his beliefs, than for his actual actions. This government, including the Administrations of Presidents G.W. Bush and Barack Obama, have used the horror we all felt from 9/11 to move this country far a field from the constitutional protections of our citizenry provided to us in that great document. While all three areas tasked with providing criminal justice, the LEO’s, the Prosecution and the Courts have failed in their duty to We the People and to the Constitution I believe that the most egregious actions have been done by prosecutors. While LEO’s arrest, the major arrests are performed within the framework given by the prosecutors. They have the final say as to who will be indicted with the crime and they are able to serve a liaison function in marshalling all the forces of government in their cause. Though no doubt many are quite dedicated to their jobs and to the Constitution, in many other instances their appointments are political and their actions in office can lead to higher and higher political achievements. This is a great temptation to set before any person. When you add in the tendency that all of us have to justify our own behavior, while finding “justification” for our actions, it can breed dangerous behavior.

In these three cases I’ve presented I think that Ms. Ortiz bears responsibility for servicing her ego via playing the part of the “tough prosecutor”. We know she had higher political aims and still might achieve them. We must all recognize that our criminal justice system is indeed in need of repair. If we don’t recognize this truth, then how could we ever go about correcting the errors?

Submitted by: Mike Spindell, guest blogger

66 thoughts on “Carmen Ortiz: Prosecution for Political Ego?”

  1. “I am just sayin’, I would not be surprised if somebody with a sociopathic disregard for the harm they do to innocents found a well-paid, prestigious job where they could do whatever they wanted to ‘suspects’ without reprisal by claiming they were just doing their job, by the rules.”


    You’ve hit on the flaw in my defense regarding evil mindset. Let me put this with complete honestly to illustrate that it isn’t my logic, but my emotions, that lead me into this logical bind. My intellectual view of humanity and our world is quite dark. My pessimism as to the eventual outcome of humanity, far exceeds my optimism. This is also true about my outlook on America’s prospects for escaping a the clutches of feudalism.

    Yet from a psychological viewpoint having such a dark outlook only breeds despair. I’m too happy with my own life to allow it to become tinged with despair and so I consciously adopt the outlook of a naive optimist, in all areas of my life. Were I to not adopt this psychological outlook, given the tragedies I experienced and seen in life, then it would be hard to stave off depression. In essence, while I’m not blinded to the true evils of this world, sociopathy is among the worst, emotionally I refuse to let this perspective reach the position where life becomes pointless. “Do not go gently into the night” was the phrase I kept repeating to my self as I was dying of heart disease before my transplant. This mindset is my affirmation of that phrase.

  2. Mike,

    I don’t disagree with you. I’m frustrated that our government has only given most of the banksters of Wall Street a slap on their wrists and no jail time–while Ortiz wanted to throw the book at Aaron Swartz.

    There was an excellent discussion about Swartz’s story on Up with Chris Hayes yesterday.

    Synopsis ▼
    Author and professor Susan Crawford, Harvard professor Lawrence Lessig, and the Up with Chris Hayes panel reflect on Internet piracy, the difference between physical and intellectual property, and the causes that Aaron Swartz was committed to.

    Here’s a link to a video excerpt of the discussion:

    Up with Chris Hayes: The legacy of Aaron Swartz

  3. Mike: I believe the distribution of intelligence in sociopaths is, if not exactly the same as the general population, still a bell curve not much offset from the one that applies to the general population.

    On the right side of that bell curve lie some wicked smart sociopaths, and with nearly 230,000,000 adults in the USA, we have about 4,600,000 sociopaths, and it should not surprise us to find about 94,000 people being hard-core sociopaths with IQs over 150 (the 2% level).

    The reason I think that makes a difference is because the primary value of high IQ (especially as we measure it) is the ability to reason through difficult problems, and spot patterns that escape 98% of the rest of the population.

    We should not be too surprised that ruthless people out-compete others for jobs that come with prestige, power, money and some immunity from the law, and we should not be surprised if the smartest of those out-maneuver (and then employ and outrank) the less smart of those.

    I am just sayin’, I would not be surprised if somebody with a sociopathic disregard for the harm they do to innocents found a well-paid, prestigious job where they could do whatever they wanted to ‘suspects’ without reprisal by claiming they were just doing their job, by the rules.

    I would not be that surprised if Ms. Ortiz found the suicide of Swartz both funny and satisfying.

  4. “Regarding John J. O’Brien who was Probation Commissioner here in Massachusetts: The Boston Globe Spotlight Team did a series of stories about him and patronage in his department. The man is a bad actor!”


    Thank you as usual for providing ample backup material documenting John J. O’Brien, who was indeed from reading it a “bad actor”. His example, and the others were used to show the wrongness of prosecutorial overreach. One could assume that none of those in the three examples were exemplary citizens. My problem is ever with prosecuting those who commit crimes. My problem is with prosecutors who tend to focus only o the vulnerable criminals, while being afraid to go after the really dangerous criminial element in our society. My focus is also on the use of “jerry-built”, ill advised, prosecutorial methodologies, that in their enactment escaped close scrutiny because they were passed in a storm of adverse publicity highlighting certain egregious infractions that were hard to remedy.

  5. Give the discussion that ensued with this blog it occurs to me that there are many different topics arising from it that call for a more detailed treatment. The entire issue of RICO for instance and of its Civil Forfeiture aspect. As I noted RICO was a measure specifically intended to reign in the Cosa Nostra (Mafia if you will). It made it through because “supposedly” the government did not have enough “weapons in its arsenal” to fight organized crime. With that “noble” cause the passed this legislation with little dissent. To my mind it has always been an “unconstitutional” overreach of prosecutorial power. The civil forfeiture procedures not only are unfairly applied, but also serve to impoverish the defendant in terms of hiring defense counsel and increase the pressure upon them by putting their families at financial risk.

    The sad truth is that the Cosa Nostra (or Mafia) while greedy and murderous, never was in the “big leagues” of American Organized Crime. They and all the other “Mafias” were “bottom feeders” of criminal activity in this country. The real criminals exist at high corporate levels, but we rarely see prosecutions of them. It’s true that they got Bernie Madoff, but in truth that was because he swindled wealthy people, victims whose needs prosecutors cater to. Martha Stewart at worst committed some low level “insider trading” in one instance, but was sent to jail. Insider Trading is common place among the elite, yet it is almost never noticed, much less prosecuted.

    John Gotti was a murderous thug no doubt. He was never the “Godfather” type, portrayed in the movies. He never had that kind of power. Yet he was incautious enough to play his role publicly, basking in its publicity to serve his massive ego. He was prosecuted 7 times and won acquittal the first 6 times because of his brilliant lawyer Bruce Cutler. At the 7th trial, legal skulduggery
    was practiced by the prosecution, Bruce Cutler was not allowed to represent Gotti and guess what they finally convicted him. Is that really an example of impartial justice. Notably, Sammy “The Bull” Gravano, Gotti’s “Underboss” was the chief witness against him. In his testimony Sammy admitted to 22 murders.
    In recompense for his testimony Sammy was given a brief sentence and afterwards went into the Witness Protection Program. Interestingly, under his new identity Sammy was arrested and convicted of drug dealing. Is this system really the “Justice” that our ideals call for? When one thinks of a person committing 22 murders, admittedly “hits”, can we not classify that person as a “serial killer”. How then did Sammy ever get out of jail?

    Perhaps in the minds of our prosecutors someone who commits “murder for hire” is merely performing an illegal business function because it is usually “nothing personal”. Whereas a “serial killer” is doing it for pleasure, not business and in our puritanical society pleasure is a dirty word. 🙂

  6. Mike,

    Regarding John J. O’Brien who was Probation Commissioner here in Massachusetts: The Boston Globe Spotlight Team did a series of stories about him and patronage in his department. The man is a bad actor!

    I know two very qualified candidates who were not hired by the department because they had no political connections.


    Patronage in the Probation Dept.
    A Globe Spotlight Team report on corrupt hiring and promotion practices within the Massachusetts Probation Department, and coverage of the investigation of the agency that followed the stories.

    One of the Boston Globe’s Spotlight Team’s articles:

    An agency where patronage is job one
    The state Probation Department once set the standard for the nation in rehabilitating criminals. But nine years ago the Legislature freed it from meaningful oversight, and the results were predictable: budgets soared, and the welcome mat was out for hundreds of job seekers with political juice.
    Globe Staff / May 23, 2010

    By any measure, Deirdre I. Kennedy was an outstanding candidate for chief probation officer at West Roxbury District Court. A Wellesley College graduate with two master’s degrees, Kennedy was a streetwise veteran of the Dorchester courthouse who spoke fluent Spanish. She was also a proven leader who had run an antidomestic violence program that won nearly $8 million in federal grants.

    But, in the closed world of the Massachusetts Probation Department, dazzling credentials scarcely matter. Probation Commissioner John J. “Jack’’ O’Brien chose the 73-year-old father of a state legislator instead, doing a favor for then-House Speaker Thomas M. Finneran, one of O’Brien’s key political mentors, who said he sought the promotion for James J. Rush as a “capstone’’ to the man’s 41-year probation career.

    The top judge in West Roxbury warned O’Brien that Rush was not up to the task, and his two-year tenure turned out to be a fiasco. Rush clashed with five female employees who alleged that he threw tantrums, tossed papers at them, and slammed the door in one woman’s face. He abruptly retired in September 2006, leaving behind a sex and race discrimination lawsuit filed by two of the women, but taking home a boost in his pension thanks to his late-career promotion.

    Rush’s quick exit gave O’Brien a second chance to take the advice of Judge Kathleen E. Coffey, who recommended Kennedy for the job. Instead, O’Brien chose another politically connected candidate: a veteran probation officer who has donated $2,100 to Treasurer Timothy P. Cahill, an O’Brien ally who employs O’Brien’s wife and one of his daughters.

    After 12 years in charge, Jack O’Brien has transformed the Probation Department from a national pioneer of better ways to rehabilitate criminals into an organization that functions more like a private employment agency for the well connected, the Spotlight Team has found.

    O’Brien’s agency now employs at least 250 friends, relatives, and financial backers of politicians and top court officials, the Spotlight review found, including children of US Representative William D. Delahunt, former mayor Raymond L. Flynn of Boston, and former Senate president William M. Bulger. The agency has also hired House Speaker Robert A. DeLeo’s godson, who, at 28, is now the youngest chief probation officer in Massachusetts.

    O’Brien has taken care of friends, too, finding jobs for the children of his Boston College football teammate, for a friend who ran a fur shop, for a former plasterer friendly with Cahill, and promoting two probation officers who moonlight as bartenders at a Northampton pizza joint frequented by one of his top deputies. Along the way, O’Brien’s family has also benefited…

    While O’Brien’s reign has been rewarding for top legislators and his inner circle, the pervasive intrusion of politics and favoritism has, according to interviews with a broad array of Probation Department personnel, badly damaged the morale of an agency with a big job to do: supervising tens of thousands of those convicted of drunken driving, sex offenses, and other crimes who are serving their sentences in the community. A six-month investigation by the Spotlight Team also found that:

    ■ The department is beset by a “pay to play’’ mentality in which ambitious employees, whether qualified or not, make campaign contributions to key politicians in hopes of advancing their careers. “You’ve got to have political juice,’’ complained one probation officer who was passed over for promotion in favor of a less experienced but politically connected candidate.

    Since the Legislature, at Finneran’s urging, transferred power over hiring from judges to O’Brien in 2001, Probation Department employees’ donations to legislative campaigns have more than doubled, a Spotlight Team analysis shows, rising from $23,413 in 2002 to more than $55,000 in 2008. Most of the money goes to just 10 powerful legislators, including DeLeo, Petrolati, and two others who have immediate family members working for the department.

    ■ Promising candidates who don’t have political connections are routinely passed over to make way for the politically wired. O’Brien, for example, didn’t promote veteran probation officer Karen Jackson to assistant chief probation officer in 2005, even though she was the unanimous first choice of a hiring committee at Milford District Court that included the local judge and Jackson’s boss, a chief probation officer. Instead, O’Brien hired the grandniece of then-State Representative Marie J. Parente.

    Jackson said that when she called Parente, the lawmaker said she felt guilty to have lobbied for her relative, who initially was ranked in the middle of the pack of candidates. “The fix was in,’’ said Jackson. “If you don’t know anyone, you’re not going anywhere.’’

    Parente said she has repeatedly helped Jackson throughout her career in the department. The former lawmaker said she does not recall whether she lobbied for her relative’s promotion. “I was always careful about the conflict-of-interest law,’’ Parente said. “I truly can’t remember what I did for her.’’

    ■ Lax oversight of the collection of fines and court costs paid by probationers has left the department, which handles more than $70 million a year in cash, vulnerable to theft. The Spotlight Team has learned that the state’s trial court, after an embezzlement scandal in the Lawrence probation office, has identified five other probation offices that have multiple deficiencies in the way they handle and account for funds. A cashier at a sixth office, in Stoughton, resigned in August after allegedly stealing thousands in court-ordered payments from offenders.

    The alleged theft of $2 million from the probation office in Lawrence District Court went on for three years despite two formal warnings from outside auditors that the clerk, Marie Morey, had almost no supervision, appeared to use irregular bookkeeping methods and couldn’t explain some missing funds. Ultimately, the Administrative Office of the Trial Court — not the Probation Department — discovered the scope of the alleged crime. Morey has pleaded not guilty.

    Yet the regional supervisor who oversaw the Lawrence District Court probation office, Jeffrey L. Akers, is still on the job and says he has little knowledge of the scandal. O’Brien said in a statement that he had no plans to discipline Akers because it’s up to court administrators to oversee “the financial integrity of the court.’’

    Akers’s written job description, however, calls for him to provide “technical assistance’’ to Lawrence and other probation offices in “fiscal matters and personnel issues.’’ Moreover, State Auditor A. Joseph DeNucci’s scathing 2007 report finding discrepancies in Morey’s bookkeeping was addressed to probation officials, who formally promised to fix the problems.

    Chief Justice Robert A. Mulligan, chief administrator of Massachusetts’ trial courts, said he is frustrated by the apparent lack of accountability by probation. “There was absolutely no oversight,’’ he said.

    ■ In three cases, politically connected employees with histories of alleged misconduct or sloppy work avoided serious career fallout. For example, Worcester police fruitlessly complained to O’Brien in 2008 that associate probation officer Ashley Losapio, the stepdaughter of a judge, had compromised an investigation by leaking information to criminals.

    Police say Losapio admitted hanging around with “bad guys,’’ and had the telephone numbers of drug and gun suspects programmed into her cellphone. While she told police she never gave the suspects information about criminal matters, she acknowledged that she would tell them whom she saw in court.

    The Worcester district attorney’s office said it found no probable cause to prosecute Losapio, but then-Detective Captain Edward J. McGinn Jr. wrote to O’Brien that “she is not a suitable person to serve this community as a probation officer.’’ McGinn said he’s never heard back from O’Brien. Since then, Losapio has been transferred. She continues to work for probation, and her pay has increased by nearly $3,000 a year.

    McGinn, now Worcester’s deputy police chief, said his investigators believe Losapio continues to associate with known criminals.

    “How on Monday through Friday from 8 to 4 can you sit down and try to guide a probationer, try to straighten their lives out . . . and then go run with them at night?’’ McGinn said in a recent interview.

    Losapio did not respond to multiple messages left at her home and office. O’Brien’s office said the matter was “fully investigated, resulting in the appropriate action.’’

  7. Is Carmen Ortiz related to Carmen Miranda? And if so why do we not get a warning when she entered the public domain. Carmen Ortiz sure is making a name for herself. If a hacker gets 35 counts piled on him what does she do to a wacker? And if she is related to Carmen Miranda and we did not get a warning, what happened to the hat? Inquiring minds who watch old movies want to know.

  8. rafflaw: I think society cares about whatever events the media (which includes the Internet) chooses to highlight and pound the table about. I think they care about drama and conflict and perceived unfairness, whether wrought by nature or man.

    If there is blame to go around for a racial bias, it belongs partially to the media but mostly to us; the media (including the Internet) is always on the hunt for traction and eyeballs, stories about routine overreach of LEOs fails to reap either.

  9. Wuterich is a murderer; the jags are corrupt; most jags ARE corrupt. Surprise, surprise.

  10. It is interesting how the sad suicide of one white man who was harassed by excess charges has garnered so much attention when the full force of the Federal DOJ is brought down on minorities on a regular basis. Was the Swartz case the final straw or does society care more about the white victims of prosecutorial abuse?

  11. Carmen Ortiz is not done with the Motel Caswell owner, apparently:’re_not_done_yet

    U.S. Attorney Carmen Ortiz said her office is weighing an appeal against a Tewksbury motel owner who criticized her for prosecutorial bullying last week after he won his battle in the feds’ three-year bid to seize his business, citing drug busts on the property.

    “This case was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades,” Ortiz said in a statement. “We are weighing our options with respect to appeal.”

    1. Puzzling,

      That follow up link was a good catch. I believe Ms. Ortiz will let nothing go in pursuit of her identity of a tough prosecutor. Psychologically she must justify all of her actions, perhaps to keep her own self estimation intact.

  12. Lex Manifesta,

    I was sleeping (+6H ET) so MikeS said it first.

    You paint a path which entails, as I understand it, a return to a judge function, no limitation on minimum sentences, and an hopefully a charge for baking, not the loaves of bread (of course number does enter when we differentiate casual from business violations).

    That is great start. And Darren’s comments and those by others showing the innate corruption in the bureaucratic process are interesting ares we can hope to improve.

    Now I am taking my re-infected cold to bed.

    So happy to see the fine material generated here.

  13. I have never agreed with the current implementation of civil forfeiture laws. To me they amount to excessive fines and are unconstitutional. For example, The fines are set by statute, such as $5,000 for Gross Misdemeanor at the maximum, or 20K for certain felonies. Yet, if someone manages to get an even slight nexus between the crime and the property they can seize a 500,000 dollar house.

    The courts then went to a true abuse of the public here when they declared that a seizure hearing, of course heard by the senior law enforcement official in the jurisdiction (sheriff of police chief of the seizing agency) was considered “due process of law”. It was a true sham and it has been around in this state for 20 years or so.

    I can see the contraband issue or moneys obtained directly from the criminal activity being seized, such as proceeds gotten from the sale of stolen property. But just because a person commits a crime in their residence it does not constitute proceeds in my book.

    In my entire career I only had two or three times where I initiated a seizure proceeding involving money. (though I had regularly seized contraband) Everything else I did not consider a seizure to be reasonable.

    Sometimes there are folks who are a bit greedy when it comes to seizing the cash cow and milking it dry.

  14. When you are a prosecutor and over charge a single person then you step into the catagory of igPay or LEO (Law Enforcement Offender). Here she was way out of bounds. She would have been prosecuted by the United States in the Nuremburg War Crimes trials after WWII. Google: The Judge’s Trial.

    They have garbage pickup in that state dont they? That is what she is now entitled to do on the public tit. Otherwise she should go be a divorce lawyer in private practice.

  15. A baker in England was once charged with baking 12 loaves of bread on Sunday. Baking on the sabbath was illegal. He was charged with 12 counts. The decision by, I believe it was Lord Chief Justice Hale was, guilty of one count. What the law prohibits is baking on Sunday, not loaves of bread.

    The rationality Hale found in the law has in large part been extinguished. Prosecutors whether state or federal by the exercise of the charging function, have a tremendous ability to determine punishment. Pile on charges, add aggravating factors or enhancements which many times carry mandatory imposition of lengthy prison terms and an accused may be facing the 30 or 50 years that Aaron Swartz was being menaced with.
    Of course pursuant to the offered plea bargain, he may have only received 6 months in prison. Or maybe his attorney was telling him that though the judge will generally give great weight to the prosecutor’s recommendation and likely follow it, the court is not bound to follow it and may sentence you to up to 30 years. Of course we can argue for strait probation but I must tell you Aaron that the court is much more inclined to follow the government’s recommendation than the defense recommendation. Now Aaron what would you like to do?

    Seems like the available choices became just a little too overwhelming for young Mr. Swartz to cope with. Maybe the prospect of even a week in jail was so frightening to him that he was simply unable to see a way to get through the ordeal.

    Many states and I believe the feds have some type of tariff system for sentencing. A vertical axis for seriousness level of the crime and a horizontal axis that reflects criminal history. Where the offender intersects on the grid will encompass a standard sentence range. The standard sentence range will typically represent a high and low sentence in months within which the judges authority to sentence is constrained. There are frequently very limited circumstances that allow for a sentence outside the applicable range, Consequently how the conduct in question is charged by the prosecutor is the single most important factor in the disposition of the case.

    Previously, before the 70’s and 80’s establishment of these sentencing reforms, judges possessed broad discretion to consider the prosecution and defense arguments as to the appropriate sentence and then could structure a sentence that the court determined represented justice with very few limits. Judges actually judged in many cases. They were an important check on prosecutorial abuse of power. It may be time to reconsider the wisdom of consolidating so much power in the hands of the prosecutor.

    Prosecutors in California accomplished third strike, 25 years to life sentences for thefts involving a golf club and several videotapes respectively. The sentences upon conviction were mandatory. The prosecutor could have avoided the ridiculously costly result but elected not to. Invariably they wanted to maintain their ability to tout their tough on crime credentials in their next run for office. No politician has ever lost an election by demagoging that they are tough on crime. I would wager that there would have been many judges in the above examples that would have been inclined to sentence the non violent recidivist miscreants in the above examples to a stout five or ten year sentence and call it a day.

    1. Lexmanifesta,

      The entirety of your comment was brilliant and is a welcome, needed addition to my piece.

  16. What Justice Holmes said. And I also mean on the part of evil, Mike. “While I don’t believe, or find comfort in the religious concept of “soul”, I do believe that we become somehow twisted emotionally if we allow ourselves to be seduced by the rewards of bad behavior.” That is the description of giving in to temptation for the sake of selfish motive(s). Sometimes intent is irrelevant and evil is in the action and the outcome. Simply because Ortiz either didn’t examine her actions carefully or simply didn’t care she was engaging in an injustice for her personal benefit does not excuse the evil outcome. Murder without intent is still manslaughter. Intent is really only relevant to the degree of culpability. It’s the same discussion we’ve had about the difference between Hitler and Reinhardt Heydrich. While both men are culpable for the actions of the Nazis, Reinhardt is arguably more so because of the differences in their individual intent.

  17. Tony C. 1, January 26, 2013 at 6:10 pm

    I have long been skeptical of the essentially unlimited power of prosecutors. I have read of D.A.s refusing to prosecute what were clearly unwarranted fatal shootings by police officers. That is far too much power to put in their hands, it is essentially the power to pardon crimes, even straight up casual murders of citizens, by simply never bringing a case.

    As for the rest, Mike: A depressingly accurate assessment indeed.
    Indeed, it destroys the jury system created in three of the Constitutional Amendments we call “The Bill of Rights”:

    A legal historian once said in the late 19th century:

    “It is remarkable that no History of Trial by Jury has ever yet appeared in this country.”

    (History of Trial by Jury). The US Constitution, our supreme law, provides us with three distinct juries.

    One such jury is the criminal grand jury (5th Amendment), another is the criminal petite jury (6th Amendment), and the third is the civil petite jury (7th Amendment).

    Without an adequate understanding of the experiences of our forefathers and foremothers who founded this country, we won’t understand why all free people must have a robust trial-by-jury system.

    (Why Trial By Jury?). As goes the jury system goes the criminal justice system, and as Mike S pointed out, as goes the criminal justice system goes public freedom.

  18. Aaron Swartz was a thorn in the side of a corrupt government and a VERY CORRUPT FEDERAL COURT SYSTEM! Harassment over the PACER incident simply led Aaron to pursue another form of information release where as an academic he knew common sense would prevail because who in their right mind was going to object to the flurry of free knowledge? The “persecution” that led to the death of Aaron was the DOJ seeing the MIT – JSTOR incident as a perfect storm to carry retaliation over the PACER incident. THIS malicious prosecution could ensure a FELONY conviction if they could get a guilty plea (a jury conviction was very doubtful); a computer crime conviction would bar Aaron from computers & his open records campaign. What you are seeing is RISK MANAGEMENT by the CORRUPT!! Public servants have a fiduciary responsibility to the tax payer; the aforementioned includes a responsibility to provide HONEST SERVICE. Appointed, or simply hired on, your responsibility when you live off the tax payer’s dollar is no less than if you were an elected official. What our high level public servants stated during the DiMasi trial as reported in the local papers follows: “The judge said DiMasi inherited a responsibility to serve in office honorably and should have been aware that his actions were breaking the law,..” “Which person is more dangerous in our country,” Wolf asked, “someone who is doing what everyone he knows does, selling crack on a corner, or people who are undermining our democracy by successfully conspiring to sell their public office?” After Judge Wolf spoke Carmen Ortiz spoke: “You heard what Judge Wolf said inside, that somehow it’s striking that elected officials think their good works (make the case) that a little corruption is OK. It’s not OK,” she said. “I am hoping by these prosecutions, the sentences that have been given out, that all elected officials — not just on Beacon Hill, but in the state of Massachusetts — will realize that these are serious crimes.” Overreach in the prosecution of a good citizen when the only intent was to make the world better while ignoring the undermining of our democracy by lower tier public servants does not meet the standard!! The most dangerous criminals in our society are very low lying fruit! The corrupt US justice system is robbing Americans of life, liberty and property. The citizens of this country want their rights back; they are tired of living in fear and having all for which they worked taken away on the whim of a corrupt public servant(s).

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