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Globe challenges sealing of probation case document

Argues publicity doesn’t matter

By Andrea Estes
Globe Staff / September 29, 2011

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The Boston Globe filed a legal challenge yesterday to a clerk’s order sealing a document detailing the criminal charges against John J. O’Brien, the former probation commissioner, and Scott Campbell, a top aide to former state treasurer Timothy P. Cahill.

During their arraignment in Suffolk Superior Court Monday, a clerk-magistrate ordered the attorney general’s statement of the case against the two men kept confidential. They pleaded not guilty to all charges, including allegations that O’Brien secured a state job for his wife by hosting a fund-raiser for Cahill.

“If anything should be fully open to the public, it’s a court case involving allegations of malfeasance by a high-level public official,’’ said Globe editor Martin Baron. “We feel an obligation to do our part to make sure the public gets the information it needs and deserves.’’

In a nine-page motion, Globe lawyers argued that court records may be impounded only after a showing of good cause by the person looking to seal the documents. In this case, Campbell’s lawyer, Charles Rankin, argued the statement would probably generate further publicity, which would be potentially prejudicial to his client.

The prospect of more news reports does not qualify as good cause, said Jonathan Albano, the Globe’s lawyer, who added that the state’s highest court has already ruled that “pretrial publicity - even pervasive, adverse publicity - does not inevitably lead to an unfair trial.’’

Albano also wrote that the facts of the case are not so personal that they should be shielded from the public. “These are not allegations involving the personal lives or intimate affairs of victims,’’ Albano wrote.

Neither Rankin nor O’Brien’s lawyer, Paul Flavin, returned calls seeking comment.

Melissa Karpinsky, a spokeswoman for the attorney general’s office said: “We appreciate the Globe and the public’s interest in this matter. We will not oppose the motion, and the issue will be decided by the court.’’

O’Brien pleaded not guilty to charges he raised more than $11,000 in donations for Cahill when O’Brien’s wife was interviewing for a job at the lottery, an agency under Cahill’s control.

O’Brien, 54, who resigned last year after an independent counsel concluded he had committed “pervasive fraud’’ in hiring and promotion practices, is charged with bribery in connection with the June 2005 fund-raiser. His wife, Laurie, started working at the lottery in September 2005. His daughter was also hired by the state treasury later that year.

Campbell, 40, who served as Cahill’s chief of staff, pleaded not guilty to conspiracy to hire Laurie O’Brien, as well as other campaign finance violations in connection with Cahill’s failed 2010 gubernatorial campaign.

Prosecutors had planned to file a public statement of their case at the arraignment. Clerk-Magistrate Margaret Sanel sealed it at Rankin’s request. Assistant Attorney General Peter Mullin agreed after Sanel gave him the choice of filing it under seal or not filing it at all.

Courts have prevented the public from viewing the statement of the case in at least one other public corruption case.

Prosecutors tried unsuccessfully to file a public statement in the case against Richard Vitale, former House speaker Salvatore F. DiMasi’s friend and former financial adviser. Though he was acquitted of federal corruption charges, Vitale faces state charges that he broke lobbying and campaign finance laws by working secretly for a group of ticket brokers .

Prosecutors sought to file an 18-page statement of the case, but were rebuffed by a judge who also refused to accept a trimmed-down version.

O’Brien and Campbell were released on personal recognizance and will appear for a hearing Nov. 2. A trial was scheduled for next September.

Federal and state authorities have been investigating allegations of rigged hiring and other abuses at the Probation Department since independent counsel, Paul F. Ware Jr. released a report last year portraying the agency as rife with patronage. He was appointed by the Supreme Judicial Court to investigate after a series of reports by the Globe Spotlight Team.

Andrea Estes can be reached at estes@globe.com.