BOSTON — A federal judge on Thursday reluctantly agreed to remove himself from the upcoming trial of the state's ex-probation commissioner and two former aides charged in a patronage hiring scheme, because defense attorneys said they may call the judge's friend as a witness.
John O'Brien, Elizabeth Tavares and William Burke have pleaded not guilty to rigging the hiring process at the probation department to favor candidates promoted by the powerful state lawmakers who set the agency's budget.
U.S. District Court Judge Dennis Saylor, who had previously denied a defense motion for recusal, was sharply critical of the defense for waiting so close to the scheduled start of the trial to file its latest request that he withdraw. He wrote that he had decided to grant the latest motion with "considerable misgivings," in the interest of "maintaining public confidence in the fairness and integrity of this proceeding."
Saylor also postponed the trial date from March 24 to April 28, but warned that further delays and disruptions were likely.
"Judicial recusal always imposes some degree of cost; here, the price of recusal will be very steep indeed," he wrote.
The case had not yet been reassigned to a new judge.
Defense lawyers had said they might call another Massachusetts federal judge, Timothy Hillman, as a witness. In seeking Saylor's refusal, the defense cited "new evidence" that Hillman was not only a judicial colleague but also a friend of Saylor's for many years.
In his ruling, Saylor acknowledged being a friend of Hillman. He said the two had been federal judges in Massachusetts for eight years, including six years working together in the smaller federal courthouse in Worcester, where they had near daily interaction.
Saylor said the defense had known for more than a year that Hillman was a potential witness and had plenty of reason to assume they were friends — yet had not raised the issue until just weeks before the trial.
A list of potential defense witnesses includes 96 past or present judges, 64 present or former state legislators, 19 present or former law enforcement officials and seven lawyers. Saylor said it would be hard to imagine that any judge in Massachusetts would not have connections to one or more people listed.
Hillman, in his prior role as a state judge, recommended 22 candidates for probation jobs, according to the defense.
Saylor wrote that Hillman did nothing wrong and suggested that the defense planned to argue at the trial that judges were engaged in essentially the same behavior as the defendants, and that the case arose out of a conflict between the legislature and judiciary over control of the probation department.
Saylor's ruling came one month after he denied an earlier motion to recuse himself because he had once been law partners with Paul Ware, who served as independent counsel during an earlier investigation of probation department hiring by the state Supreme Judicial Court.