By Andy Metzger

STATE HOUSE NEWS SERVICE

BOSTON -- A top aide's recall of the alleged "quid pro quo" Rep. Robert DeLeo gave to patronage-friendly probation officials was hazy in testimony Thursday and a judge had no memory of allegedly fraudulent interviews for a Worcester District Court promotion.

The prosecution ended its case Friday, and the defendants chose not to call anyone to the stand.

Toby Morelli, who is now deputy chief of staff for the speaker, had to rely on his notes to speak to an April 2005 meeting in DeLeo's office where former Probation Commissioner John O'Brien pushed to stymie the chief justice of administration and management from the ability to move money in and out of the probation budget.

In a legal filing, prosecutors claimed the decision by DeLeo, who was then chairman of Ways and Means, to not include the chief justice's power to transfer funds from the fiscal year 2006 budget - the governor had recommended transfer authority, according to witnesses - represented a "quid pro quo," a claim the Winthrop Democrat has forcefully denied.

Morelli said the transferability issue appeared to have been part of the pre-budget meeting in the Ways and Means office based on documents associated with the meeting, and said he jotted down a note to talk to Leonard Mirasolo, a DeLeo aide and the father of the DeLeo's godson, about the issue.

"Lenny had a relationship with the commissioner's office," Morelli said, explaining the note. Mirasolo also alerted several DeLeo supporters in the House to the availability of jobs in the probation department, which were temporary positions filled without the usual interview process.

Rep. Garrett Bradley previously testified that he filed an amendment to the fiscal year 2006 budget to restore transferability to the chief justice, and Eugene O'Flaherty, then the House Judiciary chairman, advised him that legislation would be a "tough road," but to file it anyway out of respect for the chief justice.

O'Brien and two of his former deputies are facing charges they orchestrated a secretive patronage scheme behind the guise of a purportedly merit-based hiring system. The testimony of state representatives and DeLeo aides has been limited to the additional claim that O'Brien gave jobs to DeLeo, as a bribe, for favorable treatment from the Legislature.

DeLeo's attorney, Robert Popeo told the News Service he believes the case "falls flat," and the allegation that DeLeo gave jobs to legislators so they would support him for speaker is not credible.

"Is there even one state representative who has said, 'I swapped a vote for a job'? Not one, and no one can truthfully say that," said Popeo. He said, "I don't think it's going to be politically damaging to the speaker either way, because he's not tainted by this."

Morelli said "I don't recall any specific conversations" from a budget meeting in 2009, right after DeLeo became speaker, when, according to DeLeo's former Ways and Means Chairman Charles Murphy, DeLeo instructed the probation budget to be preserved as lawmakers made mid-recession, across-the-board cuts.

The probation budget was cut that year by an amount greater than the reduction Murphy recalled originally proposing, Murphy acknowledged under cross-examination. An objection from O'Brien's attorney prevented prosecutors from pressing Morelli further on the 2009 meeting, and defense attorneys did not take the opportunity to cross-examine the aide, a rarity in the more than two-month trial.

State budget deliberations took an unusual turn in the spring of 2009 when, in response to a steep drop in April tax receipts, the Senate in May announced it planned to slash $1 billion out of the revenue base that House had used to write its bill.

House Counsel James Kennedy testified that in a September 2007 meeting, when he was a DeLeo aide, O'Brien and former probation legal counsel Christopher Bulger recommended sweeping changes that would remove the department from oversight of the chief justice of administration and management, Robert Mulligan. The probation officials recommended both a "targeted" approach and a more sweeping reorganization of the Trial Court that would have given O'Brien a lifetime appointment as commissioner, Kennedy said. 

"For both of them, I recommended not to do it," said Kennedy, who said the proposals went nowhere, and were not even put into the form of a bill.

Under cross examination by O'Brien attorney Christine DeMaso, Kennedy noted that the changes would have also given Mulligan more time to review O'Brien's appointments. While O'Brien had the power to appoint, Mulligan had the authority to sign off on the appointments.

Mulligan sparred with O'Brien and said he grew suspicious of the commissioner, though defense attorneys have contended he made his own patronage hires of court officers.

The years between the alleged machinations by probation officials and the trial has dulled the memory of several of the witnesses who have appeared in the Moakley Courthouse, prompting prosecutor Fred Wyshak at one point early on to question whether former Sen. Jack Hart suffered from memory problems.

On Thursday, Judge Paul LoConto said he had no memory of January 2005 interviews for promotion to assistant chief probation officer at the Worcester District Court, where he presides.

Prosecutor Karin Bell showed LoConto a marked-up scoresheet from those interviews with LoConto's name at the top, scribbles on the right side and numbers running down a left-hand column, with the implication that LoConto's purported ranking of the candidates might not have been done by the jurist.

"I don't have a present memory," LoConto said.

Daniel Toscano, a former aide to Salvatore DiMasi, who was speaker in 2005, testified Thursday that Bernard Dow, a veteran probation officer at the Worcester court, was recommended by DiMasi, and was told he would be receiving the assistant chief probation officer promotion.

In interview sheets separate from the marked-up scoresheet, LoConto listed Dow's answers as "adequate" and "fair/good" while another candidate who was ranked lower gave answers LoConto marked as "excellent." Dow is ranked second on LoConto's score sheet.

Another candidate's interview sheet indicated the applicant was "sick" and never showed for the interview, though that person was ranked too.

Dow said based on material provided by prosecutors that William Burke III, a co-defendant in the case, participated in the Worcester interviews with him though he has "no memory" of Burke being on the panel.