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Judges struggled to limit O’Brien

Record examined as Patrick seeks sway over probation

The report found that Robert A. Mulligan’s efforts to confront patronage were “mostly indirect.” The report found that Robert A. Mulligan’s efforts to confront patronage were “mostly indirect.”
By Marcella Bombardieri
Globe Staff / December 5, 2010

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Robert A. Mulligan, the state’s chief administrative judge, did nothing to veil the contempt he felt for Probation Commissioner John J. O’Brien’s patronage machine.

In letters to O’Brien over the years, the judge used words like “astounded’’ and “incomprehensible’’ to describe some the commissioner’s actions. He raised questions about the candidate hired after being ranked 18th — out of 18 applicants — by the interviewer who would be his boss. About the person tacked on to a list of finalists after “an error in calculations.’’ And about the hire whose lack of an associate’s degree was excused because he had been a supervisor at Sparkle Spot Car Wash.

And yet Mulligan, like his predecessor, failed to stanch the flow of politically connected candidates who won jobs that should have gone to more deserving applicants.

The state’s top judges are now facing tough questions about whether they fulfilled their responsibilities to monitor the department and rein in O’Brien, after independent counsel Paul F. Ware Jr.’s devastating finding of corrupt hiring practices within the Probation Department and Governor Deval Patrick’s bid to wrest control of the agency from the judiciary.

Indeed, O’Brien’s public defense has been to point to the fact that Mulligan, his nominal supervisor, ultimately signed off on every hire.

Ware, in his report, found that Mulligan “did not shrink from confronting’’ a “gargantuan task’’ dealing with a hostile and dishonest O’Brien, but that the judge’s efforts “appear to have been mostly indirect and around the edges of the problem.’’ Mulligan, Ware wrote, “did not typically question whether candidates were the most qualified, and he generally relented once provided some explanation by the Commissioner.’’

Similarly, Ware concluded that Mulligan’s predecessor, Judge Barbara A. Dortch-Okara, acted with integrity in the face of a system she had realized was “fixed.’’ She had considered imposing some safeguards against patronage, but the effort fell to the wayside apparently because a hiring freeze went into effect, Ware found.

The failure of judicial administrators to limit O’Brien’s activity has come in for criticism by some in the legal community. A sharply worded editorial in the Massachusetts Lawyers Weekly last week said that if Ware’s allegations are true, then Mulligan and his boss, Supreme Judicial Court Chief Justice Margaret H. Marshall, “have neglected their duties by allowing the corruption to continue.’’ The courts, the editorial added, “have hid too long behind the fiction that they lacked the necessary statutory power to confront and fire O’Brien.’’

Marshall, who did not respond to requests for comment, is retiring. Mulligan’s term runs through 2013, but his standing in the job, as a new chief justice takes office, is unclear. Even before the probation scandal, Mulligan’s support was seen as tenuous — the Supreme Judicial Court was divided in 2008 when it reappointed him to a second five-year term as chief justice for administration and management.

Several retired judges and lawyers said last week that Mulligan was handcuffed by the Legislature, which has had the upper hand in a decades-long power struggle with the courts. In 2001, as Dortch-Okara was showing some resistance to patronage hiring, Speaker Thomas M. Finneran spearheaded a law that gave O’Brien “exclusive’’ hiring authority.

Through its budget control, the Massachusetts Legislature wields a level of influence over the state judiciary unique or nearly unique among states, according to several experts on the court system. That can spell retribution when senior judges displease politicians, especially at a time when layoffs and court closings have been a constant threat.

This year, House Speaker Robert A. DeLeo backed an unsuccessful effort to move Mulligan’s office from downtown to a cramped, undesirable space atop Charlestown District Court. It was seen as payback to Mulligan after an internal court inquiry found merit to sexism allegations against a state representative’s father, a chief probation officer sponsored by Finneran.

“Chief Justice Mulligan was caught between Scylla and Charybdis,’’ Ware said in an interview, referring to the menacing sea monsters of Greek mythology. “It was essential for him to maintain a constructive relationship with the Legislature while trying to bring some discipline to Commissioner O’Brien and his hiring practices.’’

Ware also defended Marshall, who he said was, like Mulligan, “a victim of overt dishonesty in terms of the both the Legislature’s candor with her regarding Probation, and the conduct of Commissioner O’Brien.’’

Mulligan, 67, an Army lieutenant in Vietnam who has served three decades on the bench, acknowledged in an interview that he had the power to reject hires not based on merit. He said he did so when he had evidence, and that he did not fear punishment from Beacon Hill. But the elaborate, sophisticated nature of the fraud made the wrongdoing very difficult to catch and prove in specific cases, he said.

For example, Mulligan would review notes taken during interviews, but they always purported to show the winning candidate giving the most thoughtful answers. He sometimes interrogated probation officials about whether the process was rigged, but they swore it wasn’t.

“I think the history will show I tried my very best to deal with the situation that I was facing, with really a hostile commissioner,’’ Mulligan said. “We had suspicions about the process, but it was impossible to penetrate that organization.’’

When O’Brien and the judge had earlier worked together in Suffolk Superior Court, Mulligan found O’Brien a genial, “well-met fellow,’’ he said, an impression that didn’t last. Mulligan admitted to Ware that the “distastefulness’’ of dealing with O’Brien might have led him to avoid face-to-face meetings.

Once the hiring freeze ended in 2004, Mulligan imposed some limits on O’Brien. For example, he refused to fill assistant chief probation officer positions that weren’t yet vacant, which O’Brien wanted to do on the assumption that current assistant chiefs were about to be promoted to chiefs.

But by March 2005, Mulligan “seemingly relented’’ in his attempt to limit probation’s power, Ware wrote, when O’Brien scheduled 3,800 interviews to fill 52 positions. That’s 73 interviews per job.

“I can only conclude that you have decided on 3,800 interviews so that you can fulfill your own prophecy that judges would not want to be involved,’’ Mulligan wrote to O’Brien.

Mulligan decided then to involve judges in interviewing only eight finalists for each position.

Still, Mulligan sat on some appointments he didn’t agree with and vetoed a number of others. In 2005, he refused to promote Lucia M. Ligotti — daughter-in-law of a clerk magistrate — to assistant chief probation officer in Fall River because her name had been added to the list of finalists after “an error in calculations.’’

O’Brien seemed to give the chief justice no quarter, writing that he was unsettled by Mulligan’s tone, or “gravely concerned’’ that Mulligan was overstepping his authority. The Globe obtained some two-dozen letters between the two men, all exhibits in Ware’s report.

In 2006 and 2007, Mulligan tried in vain to insist that the final interview panels — made up of O’Brien’s deputies — explain their decisions in cases where they were at odds with the local interviewers, more likely to be people who had worked with the candidates.

The process “seems designed to ignore the assessments of the local panel and gives short shrift to important background characteristics of the candidates,’’ he wrote.

O’Brien countered that it was natural for the second, “more challenging,’’ round of interviews to turn out different from the first.

Perhaps Mulligan’s most hopeless move came in 2008, when he banned O’Brien and his staff from contact with “any and every member of the Legislature’’ without coordinating first with a Trial Court staff member. Given Ware’s finding that almost every hire at the Probation Department was politically influenced, it’s hard to imagine that O’Brien complied.

“I thought,’’ Mulligan wrote, “that I had made that quite clear at our meeting.’’

Marcella Bombardieri can be reached at bombardieri@globe.com.