Boston Calling verdicts send chilling message — CommonWealth Magazine
SINCE THE JURY handed down its verdict in the Boston Calling trial earlier this month, convicting two City Hall aides on federal Hobbs Act violations, a steady stream of prominent individuals have continued to scrutinize the impact of the outcome on the practice of good government. Among those calling for a reconciliation of the prosecution are most members of the Boston City Council, a former federal judge, a former head of the Carpenters Union in New England, a cabinet member from the Flynn administration, and a prominent defense attorney.
This broad-based coalition represents a visceral reaction to the pervasive, ongoing, and ultimately misguided effort to criminalize routine civic transactions led by US Attorney Andrew Lelling and his predecessor, Carmen Ortiz. The outcome in the Boston Calling trial has predictably caused many to consider whether the personal costs of performing public service have become untenable. I count myself among those ranks.
Former US District Court judge Nancy Gertner, in her recent Boston Globe piece criticizing the verdict, noted the US Supreme Court’s observation in McDonnell v. United States that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.” Supporters of the verdict, which include the editorial boards of the Globe and the Boston Herald, have repeated the prosecutors’ refrain that the defendants “pressured” and “strong-armed” concert promoters to hire union laborers. What makes this prosecution so unnerving to advocates and officials, however, is the lack of evidence at trial to demonstrate that Tim Sullivan and Ken Brissette acted “inappropriately” under the Supreme Court’s standard.
Prosecutors failed to produce any evidence of threats by the defendants — nor any evidence of personal financial gain. The concert promoters, seeking to maximize profits by charging “volunteers” to work at the event and extend alcohol sales beyond the better judgment of public safety officials, themselves viewed the hiring of union labor as a “bargaining chip.” It is therefore difficult to distinguish the suggestion of concerted union activity at the concert (itself a protected right under the National Labor Relations Act) from other typical constituent services, like the adoption of a policy favorable to a particular group or the appointment of an official that supported a campaign.
While practitioners attempt to reconcile their own operations in light of the verdict, the devastating personal fallout for Sullivan and Brissette deserves further consideration. Simply put, proportionality should always be a key consideration in seeking an indictment. In the workplace, the concept of proportionality is called “progressive discipline” — firms don’t fire employees for taking paper clips, and embezzlers don’t get off with a written warning.
Prosecutorial discretion gives law enforcement a measure of proportionality in deciding to pursue criminal charges. The concept has recently gained notoriety as a number of progressive district attorneys in Massachusetts and across the country are choosing to forego prosecutions for certain crimes as a means of addressing the underlying economic conditions that motivate individuals to commit nonviolent offenses. US attorneys also regularly exercise this discretion, albeit with higher stakes, and many have conviction rates approaching or exceeding 90 percent because they choose which cases to bring to trial (and may refer lesser offenses to administrative tribunals, like the National Labor Relations Board, or leave it up to local prosecutors under state laws).
By this standard, criminal prosecution for extortion under the Hobbs Act is no low-level offense: conviction carries a maximum prison sentence of 20 years. Members of the Gambino crime family have been convicted under the same statute. The scant evidence at trial and two recent failed prosecutions of Teamsters for similar charges made the likelihood of obtaining a conviction (and sustaining the verdict on appeal) in the Boston Calling case by no means a sure thing. So prosecutors got their conviction, but at what cost?
US District Court Judge Leo Sorokin may yet enter a judgment of acquittal — having indicated concerns about the prosecution’s case at trial that mirror his initial decision to dismiss the charges in 2018. An appeal of the verdict may also reverse the convictions. Nevertheless, the financial and reputational damage suffered by these men and their families are severe and ongoing. Commentators have been quick to label these public servants as “criminals” in the wake of the verdict, and Sullivan and Brissette immediately resigned from their positions at City Hall.
Sullivan is a friend and, regrettably, a now former colleague. He and I were recently conspiring together, in fact — over the better part of the last two years — to lobby the Legislature to increase funding for public schools in Boston and across the Commonwealth. Now this husband and young father is facing jail time for doing his job and serving the City’s constituents. This isn’t how good government should treat its servants and advocates.
If we want to continue to attract dedicated public servants to our system of representative government, we must recognize and appreciate the value of effective advocacy and provide peace of mind for those who practice it daily.
Michael Loconto is an attorney and chairman of the Boston School Committee. This essay represents his personal views.
Originally published at https://commonwealthmagazine.org on August 30, 2019.