Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

MASSACHUSETTS WHITE COLLAR CASE PRESENTS BATTLES ABOUT IMMUNITY AND GRAND JURY TESTIMONY

You have probably heard the old saying, “Hey, it’s only business”. The adage used to be used when one person got the better of a “friend” in business. No matter how ugly any deception would be, the rationalization was, “It isn’t personal…it’s just business“.

Usually the person on the winning end had an easier time accepting the notion than the losing party.

Today’s story reflects on a new version that you might be hearing soon. It would go, “Hey, it’s not personal…it’s just liberty.”

It would be particularly useful when trusted comrades turn on each other when facing the long end of the prosecutorial gun armed with years of potential incarceration.

Today’s case in point involves former Probation Commissioner John “Jack” O’Brien and two of his “most trusted lieutenants”. They have apparently struck a deal with the prosecution in which they have been granted immunity from prosecution in return for their testimony at trial. Against said former pal..

Trials in both Massachusetts state and federal court.

You see, O’Brien, who retired as commissioner in 2010, pleaded not guilty last September to bribery and conspiracy charges in connection with the 2005 fundraiser for Cahill he’s accused of stocking with probation employees in exchange for his wife’s Lottery job. The event is said to have brought in more than $11,000 for Cahill. In March, it was announced that O’Brien had been indicted on RICO conspiracy and mail fraud charges by a federal grand jury for currying favor with legislators in exchange for keeping their department’s budget flush with state money.

In these types of cases, former friends can make important witnesses. In this case, said friends are Edward P. Ryan, O’Brien’s liaison to legislators, and Francis M. Wall his deputy commissioner.

Apparently, testimony by these gentlemen has been procured before state and federal grand juries.

This has now brought about a battle in which the attorneys for O’Brien and his co-defendant, former campaign manager to ex-Treasurer Timothy Cahill Scott Campbell, are demanding to know what deals were made with Ryan and Wall by prosecutors and police to persuade them to testify.

While inconsistent testimony and cross-examination generally takes place during a trial, the Grand Jury testimony is already being disputed in public. For example, one of the attorneys has already begun attacking Ryan’s state grand jury testimony by comparing it with earlier statements made by the witness.

Assistant Attorney General Peter Mullin has told Suffolk Superior Court Judge Bonnie H. MacLeod, who presided over the recent hearing, that “The explanation is he went to the independent counsel without a lawyer. He said some things that were inaccurate. He acknowledged in his state grand jury testimony they were wrong.”

The court has taken the discovery matter under advisement.

Attorney Sam’s Take On The Importance Of Being Represented In Criminal Investigations:

Both the state and federal cases in this matter involve charges of white collar crimes. Further, the targets of the criminal investigation, now defendants, were not folks who ever expected that they would be in this position.

Heck, they were on the other side of the law, after all.

There are various issues that the discovery dispute above brings out and we will get to that on Friday. However, in the meantime, I think it is worth noting the primary underlying lesson this tale brings.

It is not something new. This Boston criminal lawyer has been shouting it for many a year now.

If you have reason to believe you are being investigated by law enforcement, via a grand jury summons or simply a telephone call from a local detective, you are best advised to consult an experienced criminal lawyer.

In today’s posting, you have the suggestion of a scenario that can happen when you decide to “go it alone” and try to “work” law enforcement. Law enforcement agents in these cases, be they prosecutors, investigators or detectives are used to people who believe they can outwit the system. They deal with them for a living. Trying to “work” the “workers” is a bad idea.

It sounds like what happened to Mr. Ryan is that he gave it a solo attempt…and talked himself into a corner from which he was unlikely to escape without criminal charges unless he decided to “play ball”. The ball game in many of these cases, of course, is called “Who Knows Your Memory Best?” The compactors are generally law enforcement and potential witness/defendants. If the “memories”, you win. If they don’t, you get the chance to change your “memory” to fit the government’s theory of the case.

It sounds like Mr. Ryan got a lawyer to help his “memory” just in time before the government found him to be unreliable and maybe an additional defendant.

For the original story upon which this is based, please go to http://www.bostonherald.com/news/regional/view.bg?&articleid=1061146509&format=&page=1&listingType=Loc#articleFull

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