Bill Newman: How Hatfield resident William Burke III was found guilty of a thought crime

Last modified: Friday, August 01, 2014

NORTHAMPTON — Headlines in western Massachusetts newspapers at the conclusion of the recent federal criminal trial of former Probation Commissioner John O’Brien and his assistants, Elizabeth Tavares and Hatfield resident William Burke III should have read, “Jurors reject almost all government case against Burke.”

Instead, the headlines emphasized the half dozen guilty verdicts the jury returned against O’Brien and Tavares.

The government alleged that O’Brien, Tavares and Burke rigged the state probation department’s hiring process by awarding jobs to applicants recommended by state legislators. The supposed pay-off was that legislators would not cut the Probation Department’s budget.

The prosecutors’ case had problems. For example, no defendant was personally enriched — not a dime. No legislator was charged with any wrongdoing. And the probation budget was cut 14 percent.

But utilizing the adage that a grand jury, if asked, would indict a ham sandwich, federal prosecutors brought multiple counts of mail fraud (allegedly using the mail to send untrue information about the hiring process) against all the defendants as well as a racketeering charge and a conspiracy count (more on this in a moment). After two and a half months of trial, 60 witnesses and 200 exhibits the jury acquitted Burke of all the mail fraud counts.

The indictment also alleged two violations of RICO, the Racketeering Influenced and Corrupt Organizations Act. RICO was designed to target the Mafia and organized crime, but since its passage, with a construction pushed by prosecutors and approved by judges, has morphed into a law-enforcement weapon that allows prosecutors to target any group of people who might be vaguely organized.

The first racketeering allegation asserted that the defendants committed criminal acts to further the interests of a criminal enterprise, the probation department. The media coverage has failed to emphasize an important sentence contained in this part of the indictment: “William H. Burke, III is not named in this count.”

But the indictment contained another RICO count — a conspiracy to violate RICO. What in the world is that, you may wonder. And how could Burke — or anyone — be convicted of a conspiracy to commit a crime for which he, the prosecutors concede, he’s innocent?

The quick answer to the last question? Because the law says so. And indeed, Burke was convicted of the RICO conspiracy charge. That is the only charge on which he was found guilty.

How the jury arrived at this verdict is understandable. Conspiracy is a thought crime. Conspiracy (albeit ominous sounding) essentially means that two or more people made an agreement. The agreement need not be express but rather can be implied, so the terms of the agreement can become whatever prosecutors in hindsight claim they were.

In general, for a person to be guilty of a criminal conspiracy, he or she, in addition to reaching an agreement, must do something – however minimal, to further the conspiracy — in legal parlance, to commit an “overt act.” But RICO conspiracy is different. A person can be found guilty of a RICO conspiracy without committing any overt act, that is, without actually doing anything.

And get this: Impossibility of performance is no defense. A person may be found guilty of conspiracy even though he was incapable of committing the substantive offense.

Breadth — an almost boundless elasticity — is a hallmark of a conspiracy charge. Conspiracy allows prosecutors to send person A to prison for acts committed by alleged co-conspirator B even if A never met B and had no idea what he was going to do.

Another hallmark of the crime is its vagueness. Prosecutors understand that when they have insufficient evidence to prove the substantive crime, they can still charge conspiracy.

Do remember: whether a criminal charge is brought rests entirely in the hands of the prosecutor. America’s system of trials and prisons depends entirely on the exercise — wise or otherwise — of prosecutorial discretion. It is RICO conspiracy’s breadth and vagueness that coronates it as the ultimate weapon for zealous, and overzealous, prosecutors.

The title of civil rights and criminal defense attorney Harvey Silverglate’s book “Three Felonies A Day” derives from Silverglate’s estimate that most individuals daily commit that many federal crimes. Almost anyone could be a target. Prosecutors determine who becomes one.

Let’s be clear. A fundamentally dishonest hiring system for state jobs, with preordained results, stinks. It’s dead wrong. The fact that patronage of the sort that O’Brien practiced (and the jury found Burke didn’t) has been a norm across the political spectrum for centuries does not excuse or condone it.

But there is something even more pernicious — a judicial system that allows prosecutors to go after, not the crimes that need to be prosecuted, but rather the people they want to get. They find a charge that allows them to accomplish that goal and then proceed to the grand jury. And then the system rolls on.

Bill Newman is a Northampton lawyer and host of a WHMP weekday program. His column appears the first Saturday of the month. He can be reached at


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