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Motion to quash subpoena

Motion to quash subpoena

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Published by: BostonGlobe on Sep 15, 2010
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Suffolk, SS.





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SJC No. OE-123


NOW COMES State Representative Thomas M. Petrolati (hereinafter "Petitioner") and

respectfully moves this Honorable Court for an Order quashing the subpoena served on him by

Independent Counsel Paul F. Ware, Jr., which is attached as Exhibit A. In support of this

Motion, Petitioner states as follows:

I. Factual Background

A. The Boston Globe Articles

On May 23,2010, the Boston Globe published the first in a series of articles raising

questions about hiring and promotion practices within the Probation Department of the Trial

Court. According to the Globe, the "2,OOO-plus employee agency" led by Commissioner of

Probation John J. O'Brien employs "at least 250 friends, relatives, and financial backers of

politicians and top court officials." The Globe reported that "irregularities in the [hiring] process

are legion[ ]: the children of influential people. , . got jobs even though they didn't make the list

of finalists, friends and allies [were] hired on an 'acting' basis without a formal hiring process,

[and] job applicants with no political ties ... [had] their interview evaluations inexplicably

changed to reduce their overall ranking."

Furthermore, the Globe claims to have discerned "a disturbing pattern in which probation

officers suddenly start donating to key legislators just before or after they get a job in the

department, giving the appearance that political contributions pave the path to success." The

Globe identified Petitioner as one of the legislators engaged in these activities:

No legislator has reaped greater benefit from the pattern of hiring than state Representative Thomas M. Petrolati, the third-ranking House member who is regarded by many members of the Western Massachusetts legislative delegation as the 'king of patronage' in courthouses west of Worcester. Under O'Brien, the Probation Department has provided jobs for Petrolati's wife, a former staffer, the husband of his legislative aide, and literally dozens of Springfield-area residents who have donated money to Petrolati. Since 2002, Petrolati has collected twice as much in campaign contributions from probation employees as any other legislator, according to campaign finance records.

B. The SJC Order and the Status of Ware's Investigation

On May 24, 2010, the day after the firstartic1e ran in the Globe, this Court issued an

Order, "pursuant to the constitutional and statutory powers of general superintendence,"

appointing Boston attorney Paul F. Ware, JI. as Independent Counsel, "with the powers of

Special Master and Commissioner to conduct a prompt and thorough administrative inquiry into

alleged improprieties with respect to hiring and promotion of employees within the Probation

Department, as well as other practices and management decisions that have been called into

question." The Court granted Ware "the power to subpoena witnesses and to administer oaths."

The Court also ordered Ware to file a report of his findings within ninety days and, where

appropriate, to make recommendations "with respect to indications or findings of misconduct, if

any, on the part of any employee of the judicial branch."

As of August 10,2010, Ware had "conducted dozens of background interviews of

persons who may have information pertinent to the investigation," and had taken swom

testimony from fourteen witnesses. Response of Ware to the Motion of Commissioner John J.

O'Brien for Instruction by the Court, at pp. 4~5.


On August 12, 2010, Ware served the subpoena attached as Exhibit A on Petitioner. 1 The

subpoena seeks both testimony and an array of documents from Petitioner, some going back

more than a decade.

C. The Nature of the Investigation

Ware has characterized his role as being "investigatory," and "neither accusatory nor

adversary." rd. at p. 3. This is not true. At the conclusion of his investigation, Ware has been

ordered to make recommendations, "as he may deem appropriate," regarding "indications or

findings of misconduct ... on the part of any employee of the judicial branch." To the extent

Ware makes findings of misconduct, it is axiomatic that his recommendations will include taking

adverse employment action against employees involved. Therefore, Ware's role plainly

encompasses both accusatory and adversarial features.

Moreover, the potential ramifications of Ware's investigation are far more severe than

adverse employment actions against employees of the judicial branch. Ware has publicly

ac1mowledged this fact as reported by the Globe on May 25,2010 by stating, "[tjhat is the

purpose of any investigation, ... for the independent counsel, or perhaps others, to make

judgments regarding what, if any, civil or criminal action is warranted."

The likelihood that civil action or criminal prosecution may result from Ware's

investigation is underscored by the onerous "Warning" he has made a practice of providing each

witness appearing before him. The Warning provides a laundry list of state and federal

government agencies to which the testimony probably or "foreseeably" will be disclosed as


It is probable that any information you provide will be made available at some point in the future to the Office of the Attorney

! The parties agreed that the August 25,2010 date on the subpoena would be deferred until the Court rules on this motion.


General of Massachusetts, to one or more District Attorneys, [and] to state agencies and other entities of the Commonwealth including the State Ethics Commission. It is foreseeable that your testimony will be made available to the Department 'of Justice, the United States Attorney's Office, including its investigative agencies, the Federal Grand Jury and federal law enforcement agencies.

See Exhibit B (SJClProbation Investigation WARNINGS). This Warning clearly conveys that

all witnesses, not simply judicial department employees, face the likelihood that their testimony

will expose them to unspecified and unknown civil claims or criminal prosecution by state or

federal government authorities.

Ware has further underscored the potential criminal ramifications of his investigation by

ominously declaring early on that he planned to utilize a "federal grand jury model" for his

investigation, despite the fact that his mandate from the Court was to conduct an "administrative

inquiry" and that he has been. unable to identify any criminal statutes that may have been

violated. Petitioner is not aware of any basis or authority to justify Ware's decision to embrace a

"federal grand jury model" for his state "administrative inquiry."

The truth, however, is that Ware decided to use only a single part ofthe "federal grand

jury model" that was tactically advantageous to him. In the federal grand jury system, the

government is allowed to exclude counsel from being present while their clients provide sworn

testimony. Beyond using that one part of the federal grand jury system, Ware refused to embrace

any ofthe routine safeguards of that system, such as identifying any statutes that may have been

violated; advising witnesses as to their status within the investigation, i.e. as witness, subject, or

target; or making any meaningful commitment that his investigation would remain confidential

unless charges were brought.' Thus, Ware did not actually embrace a "federal grand jury model"

2 Ware has claimed that "[t]he Court directed that the investigation be confidential and only for the Court." See Response of Ware to the Motion of Commissioner John J. O'Brien for Instruction by the Court, at p. 3. However, this direction is not contained in the Court's May 24,2010 Order, or anywhere else in writing from the Court as far


for his investigation, but rather unilaterally adopted only the one aspect of that investigatory

framework which gave him a tactical advantage.

When his practice of prohibiting counsel from being present for sworn testimony was

challenged by Commissioner 0 'Brien, this Court ordered that witnesses may be accompanied by

their counsel in the examination room, but counsel are prohibited from participating in the

testimonial process other than to advise clients as to privilege issues. August 16,2010 Order

Upon Consideration of the Motion of Commissioner John J. O'Brien (Paper #9). This ruling

mirrors the restrictions on participation by counsel before a state grand jury. In so ruling, the

Court clearly rejected Ware's "federal grand jury model" and apparently embraced a state grand

jury model for testimony. The contours of that state grand jury model, however, remain

completely undefined. There are simply no set of rules or procedures applicable to Ware's

investigation. As it stands, Ware is now conducting an "administrative inquiry," apparently

utilizing a state grand jury model without any of the safeguards which exist in that model.

One aspect of this model is particularly troubling. The Court's August 16,2010 ruling

prohibiting counsel from making any statement on the record or even speaking to Ware except as

to issues relating to the assertion of testimonial privileges leaves open the very real possibility

that a witness may be precluded from providing his entire testimony concerning subjects of

inquiry. If certain testimony is not elicited by Ware and counsel for the witness is not permitted

to make inquiry to supplement and complete the testimonial record (as is permitted in civil

depositions), the record may well be left incomplete and inaccurate. Counsel for witnesses may

lmow of information that would be highly relevant to the topics Ware asks about, but counsel is

as Petitioner is aware. Moreover, when the results of the investigation will "foresee ably" end up in the hands of as many state and federal executive agencies as are enumerated in Ware's Warning, the claim that the investigation is somehow confidential is simply not credible.


specifically precluded by the Court from developing such information on the record. A model whereby Ware takes partial testimony and makes findings and recommends adverse employment actions on that limited record, which limited record may also be turned over to state and federal law enforcement agencies, is just unfair, and it is likely to taint Ware's recommendations and any action the Court takes on them.

II. Legal Argument

A. Summary of the Argument

Petitioner does not challenge this Court's authority to appoint Ware to investigate potential wrongdoing within the judicial branch, including the Department of Probation, to discipline judicial department employees found to have engaged in misconduct, or, as a general matter, to use the subpoena power to facilitate an internal investigation within its own branch of government. By statute, the Court is granted "general superintendence of the administration of all courts of inferior jurisdiction" and is authorized to "issue such writs, summonses and other processes and such orders, directions and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration." See M.G.L. c. 211, § 3. Beyond this statutory grant of power, this Court has inherent constitutional powers, "as the highest constitutional court of the Commonwealth, to protect and preserve the integrity ofthe ' judicial system and to supervise the administration of justice." In the Matter of DeSaulnier, 360 Mass. 757,759 (1971). These statutory and inherent constitutional powers of general superintendence clearly authorize an internal investigation of the judicial branch ascommissioned here. See First Justice of the Bristol Division of the Juvenile Court Dept. v.


Clerk-Magistrate of the Bristol Division of the Juvenile Court Department; 438 Mass. 387,401


Such an investigation, however, cannot exceed the scope of the statutory and

constitutional powers on which it is premised. If the subpoena to Petitioner is enforced, the

investigation will have exceeded that scope and Ware will have exceeded the authority delegated

to him in the Court's May 24, 2010 Order.

Moreover, an order from this Court that Petitioner, a member of the legislative branch

over whom this Court holds no supervisory authority, must comply with the subpoena issued to

him pursuant to the Court's powers of general superintendence would constitute an

unconstitutional encroachment by the judicial branch on both the executive and legislative

branches of government in violation of the doctrine of separation of powers set forth in Article

30 of the Massachusetts Declaration of Rights.

In reviewing these arguments, the Court should consider the possibility of the

constitutional crisis that could ensue from enforcement of this subpoena. If this Court fails to

quash the subpoena, and Petitioner refuses to comply, does this Court, in the context of its

"administrative inquiry" into alleged misconduct within its own branch of government, plan to

hold Petitioner in contempt? Will this Court jail Petitioner until he submits to the subpoena?

How will the legislature respond? It does not strain the imagination to foresee a constitutional

crisis precipitated by the judiciary's breach of the separation of powers doctrine if this subpoena

is enforced.

B. The Subpoena to Petitioner Exceeds Ware's

Authority and this Court's Powers of General Superintendence

The subpoena to Petitioner exceeds the scope of the Court's statutory and inherent

powers of general superintendence and the authority delegated to Ware in the Court's May 24,


2010 Order. This Court explicitly issued its Order "pursuant to the constitutional and statutory powers of general superintendence." By necessity, the authority delegated to Ware was constrained by the scope of the very powers on which it was based. Consistent with the limitation of those powers, the Court limited Ware to conducting an "administrative inquiry" into misconduct on the part of employees of the judicial branch over whom the Court has supervisory authority and to make recommendations with respect to indications or findings of misconduct, if any, "on the part of any employee of the judicial branch," only. It did not, nor could it have, authorized Ware to investigate non-judicial branch employees with respect to alleged misconduct by them. Such power is not encompassed within the Court's constitutional or statutory powers of general superintendence.

A corollary can be drawn between this investigation and the investigation a private company might conduct as a result of some suggestion of wrongdoing by its employees. There is no doubt that a private company can require its employees to cooperate in such an investigation as a condition of continued employment. The company could also request cooperation from non-employees. The company could not, however, require cooperation from non-employees.

Ware's authority in this investigation should be subject to the same limitation. Ware plainly has the authority to subpoena judicial department employees and to require their full cooperation in the investigation as a condition of continued employment as would any private employer. Outside of the judicial department, however, Ware should not be granted the authority to force non-employees to testify under oath subject to being held in contempt by this Court.


Moreover, subpoenas to judicial department employees unquestionably fall within the ambit ofM.G.L. c. 211, § 3 as permissible only if "necessary or desirable for ... the improvement of the administration of ... [the] courts, and the securing of their proper administration." The subpoena to Petitioner is neither "necessary" nor "desirable."

Ware does not need sworn testimony from Petitioner to do his work. To the extent Ware has obtained testimony or other information from judicial department employees as to actions taken by Petitioner, he does not need testimony from Petitioner to make findings or recommendations. For example, in Ware's subpoena to Petitioner, Ware seeks documents relating to a long list of individuals. That list is largely comprised of Probation Department employees, some of whom have made political donations to Petitioner. Whether or not such donations were made is a matter of public record, which Ware has surely already verified by consulting Petitioner's yearly reports filed with the Massachusetts Office of Campaign and Political Finance. As to whether there existed any improper motive behind the donations, Ware is free to exercise his subpoena power and question any of those individuals who are employees of the judicial branch. Ware does not need to question Petitioner on these same SUbjects. Thus, the subpoena is not "necessary." Nor is it "desirable" to create a battle between the branches of government and a potential constitutional crisis by enforcing an unnecessary subpoena. The Court should read these "necessary or desirable" limitations into its grant of authority to Ware and quash the subpoena to Petitioner because it is neither.

In the alternative, the Court could take the intermediate step of ordering the subpoena held in abeyance until Ware can submit a preliminary report of his investigation, which would permit the Court to make a more informed decision as to whether the information apparently sought by the subpoena to Petitioner is "necessary" or "desirable." It may well be that an interim


report would provide more than enough information for the Court to take whatever

administrative actions it deems appropriate without the various legal and political risks created

by enforcing the subpoena.

C. Separation of Fowers

"[Tjhe concept of separation of powers is fundamental to our form of government."

Opinion of the Justices, 365 Mass. 639, 640 (1974). Article 30 of the Massachusetts Declaration

of Rights contains an express provision that "on its face calls for a complete and rigid division of

all powers among the three branches." Id. Article 30 states:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government oflaws and not of men.

The limitations imposed by the constitutionally mandated separation of powers doctrine "though

sometimes difficult of application, must be scrupulously observed." Opinion of the Justices, 302

Mass. 605, 622 (1939). Interference by one branch with the core functions of another branch

must be avoided. In the words of this Court, such interference is the "essence of what cannot be

tolerated." First Justice of the Bristol Division of the Juvenile Court Dept., 438 Mass. at 396.

1. Encroachment on the Authority of the Executive Branch

Under the Massachusetts Constitution, "[t]he courts of the Commonwealth constitute a

separate and independent department of government entrusted with the exclusive power of

interpreting the laws." O'Coin's, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507,

509 (1972). The core function of the courts is adjudication. "A court is not a prosecuting officer

. , .. Its office is judicial-to hear and determine [issues] between the Commonwealth and the

defendant." Commonwealth v. Clerk of Boston Division of the Juvenile Ct. Dept., 432 Mass.


693,699 (2000) (internal quotations omitted). "To conclude otherwise would be to permit judges to substitute their judgment as to whom and what crimes to prosecute, for the judgment of those who are constitutionally charged with that duty, and who are accountable to the people for doing so responsibly. The line that the principle of separation of powers requires us to draw between the exercise of judicial and executive powers could not be more clear." Commonwealth v. Cheney, 440 Mass. 568,575 (2003).

To the extent that this Court's Order extends to subpoenaing judicial branch employees and seeks recommendations from Ware regarding misconduct by such employees, the Court's actions are appropriately judicial in character, and there is no violation of separation of powers and, therefore, no constitutional impediment. To the extent this Court's Order is utilized to subpoena non-judicial branch employees regarding suspected misconduct by them, however, it represents the exercise by the Court of non-judicial duties in violation of Article 30. By enforcing such a subpoena, the Court would exceed its ancillary powers of general superintendence and assume, on its own initiative, the exclusive duties and prerogative of the executive.

The reality that the judiciary in this context would be operating in an unconstitutional role is underscored by several factors. First, as quoted above, Petitioner was identified in the Globe report that precipitated this investigation as being a wrongdoer within the legislature in connection with hiring and promotion practices in the Probation Department. The notion that Ware seeks to question him solely in his capacity as a witness to verify or refute information already provided by judicial employees regarding wrongdoing within the judicial department strains credulity given this backdrop. Rather, Ware clearly seeks to interrogate Petitioner under oath in order to force him to confirm or deny his own alleged wrongdoing as attributed to him by


the Globe. This is the only conclusion that can be drawn from the fact that Ware has not sought to informally interview Petitioner for the purpose of gathering information, but rather has jumped directly to issuing a subpoena for sworn testimony in a setting in which Petitioner's counsel must remain silent as to the substance of Ware's inquiries. In addition, examination of the documents Ware has requested in the subpoena reveals a clear theme of suspicion regarding donations to Petitioner by Probation Department employees. See Ex. A. Finally, Ware's Warning to witnesses underscores that the result of his investigation will not be to simply find facts and make recommendations regarding misconduct by judicial department employees, but also to ultimately provide sworn testimony and other information to the various civil and criminal executive agencies enumerated in the Warning.

This is not to say that Article 30 prohibits the judiciary from ever playing a role in investigating potential misconduct outside its own branch. Rather, what Article 30 prohibits is the judicial branch assuming such an executive role entirely of its own volition absent a delegation of authority by the legislature and without any check on its exercise of that authority by either of the other two branches.

For example, in Lachapelle v. United Shoe Machinery Corp., 318 Mass. 166, 168 (1945), this Court upheld against an Article 30 challenge a statutory scheme in which this Court (or a Superior Court) was required upon verified complaint by any person alleging a monopoly to appoint a master to hear the parties on the allegations and to issue a report with findings and recommendations. Upon approval by the Court, the magistrate's report was tobe transmitted to the attorney general for possible civil or criminal proceedings. This Court found the investigatory authority delegated to the courts under the statute to be appropriately judicial


because it was closely connected to judicial proceedings. In reaching its holding, the COUli

reasoned that:

The procedure under the statute is therefore both in the nature of a bill of discovery and in the nature of an inquest. ... Each of these proceedings is designed merely to ascertain facts for the purpose of subsequent prosecution. There is some analogy between proceedings under this statute and the ordinary inquisitorial proceedings of grand juries.in the criminal courts, where even if a true bill is returned, further prosecution rests in the discretion of the district attorney or the Attorney GeneraL It has never been doubted the duties of obtaining discovery and of holding inquests may be properly performed by judges. It has been said, in substance, that holding an inquest is a quasi judicial function which may be committed to administrative officers or may with propriety be placed upon the judiciary,

Id. at 168-69 (citations omitted).

Unlike the Court's role in Lachapelle, as well as in the inquest and grand jury

proceedings to which it was likened, the Court in this instance has itself instituted the

investigation and delegated to itself full authority to conduct the investigation.' In Lachapelle,

the power to conduct the investigation of monopolistic conduct was specifically delegated to the

judiciary by the legislature. Moreover, any specific investigation was to commence only upon

the filing of a verified complaint. Similarly, the role of the judiciary in conducting an inquest is

statutorily delegated by the legislature and occurs only at the direction of the attorney general or

a district attomey. See M.G.L. c. 38, § 8. The same is true of grand jury proceedings, which are

instituted by the attorney general or a district attorney, who then largely controls the presentation

of the case to the grand jury.

Thus, in all three instances, power is not monopolized in one branch. Rather, the judicial

branch has been delegated investigatory authority by the legislature and is spurred into action not

3· The general powers of superintendence delegated to the Court pursuant to M.O.L. c. 211, § 3 extend only so far as the "administration of courts of inferior jurisdiction."


of its own accord, but rather based on third party action, either the filing of a complaint or the direction of the attorney general or a district attorney, providing a check on the Court's operation of its delegated authority.

The complete lack of any procedural guidelines governing Ware's investigation make the prospect of the Court exercising non-judicial duties even more troubling for individuals such as Petitioner. Ware has conceded that there are no written rules or procedures for his investigation apart from the Court's August 16,2010 Order, which forced Ware to permit only the most minimal protection that can be afforded by counsel, i.e. the right to have counsel present but essentially mute. The lack of rules has been underscored by the shifting nature of Ware's investigation, which has morphed from the "administrative inquiry" ordered by the Court, into an inquiry based on a "federal grand jury model," into an inquiry apparently based on a state court grand jury model, all while Ware has been actively taking testimony and all within 90 short days.

2. Encroachment on the Legislative Branch's Authority

To the extent that Ware's subpoena on Petitioner seeks to uncover misconduct not amounting to a violation of the criminal laws by Petitioner and, therefore, not subject to

. prosecution by the executive, it nevertheless encroaches on the legislative branch's authority to supervise the conduct of its own members. The Massachusetts Constitution provides in chapter 1, section3, article 11 that "the senate and the house of representatives may try, and determine, all cases where their rights and privileges are concerned, and which, by the constitution, they have authority to try and determine, by committees of their own members, or in such other way as they may respectively think best." This Court has interpreted this provision of the Constitution as representing a "grant of absolute power." Dinan v. Swig, 223 Mass. 516, 520 (1916). To the extent Ware is seeking to determine if Petitioner engaged in some sort of ethical


violation short of a violation of the law, Ware encroaches on the House's authority to "try and

determine all cases where its rights and privileges are concerned."

Moreover, the subpoena represents a potential violation of the Speech and Debate Clause

as set forth in Article 21 of the Declaration of Rights, which reads, "[tjhe freedom of

deliberation, speech and debate, in either house of the legislature, is so essential to. the rights of

the people, that it cannot be the foundation of any accusation or prosecution, action or complaint,

in any other court or place whatsoever." This Court has granted Article 21 a liberal construction,

extending the privilege to "the giving of a vote, to the making of a written report, and to every

other act resulting from the nature, and in the execution, of the office." Coffin v. Coffin, 4 Mass.

1, 27 (1808). This broad construction protects members of the legislature from compelled

questioning or document production concerning matters that fall within the ambit of the

privilege. Given the subject matter of the investigation here, there exists a very distinct

possibility that much of Ware's questioning would fall within prohibited areas.

III. Conclusion

For the reasons set forth above, Petitioner asks the Court to quash the subpoena served on

him by Ware.

Dated: August 26, 2010



YJIlk:illOOi, BBO #407560

·~)'o'<l'~I/'""UAfl·t Ui.fierstpucci.com

zette Richards, BBO #649413 ail: richards@fierstpucci.com IERST, PUCCI & KANE LLP

64 Gothic Street, Suite 4

Northampton, MA 01060 Phone: 413-584-8067 Fax: 413-585-0787



I, John P. Pucci, hereby certify that I have served a copy oft foregoing document via Federal Express on Paul F. Ware, Jr., Esq., Goodwin Proctor LLP ne Exchange Place, 53 State Street, Boston, MA 02109, on this 26th day of August, 2010.






* SJC No. OE-123 *







Thoma-s·M. Petrolati 106 Stevens"; St'reet:

Ludlow, MA 01056

~ ~. .' I

GREETINGSt YOU ARE HEREBY COMMANDED, .in the name of the Commonweaith of Massachusetts, to appear before the :;:':v.dependent Counsel appod.rrt ed by .Order of the Supreme' Judicial Gpurt in t.he« above-captioned'matter and to testify before a Notary Public of the Commonwealth, at the 'offices"~f' Goodwin 1?rocter LLP~ Exchange. Place, Boston, Massachusetts on the,'25'th day of August, 2010 at 10:00 a.ra, **

"and you are further ~equired to bring with you the items listed on the atta~hed "S~hei!lule A."

Hereof fail not, as you will answer your default under the penalties in the law in that behalf made and provided.

Dated at: Boston, Massachusetts t August <.~2, 2010

./ ~~AriL__

~ellen Clerk



Suffolk, ss.

Supreme Judicial Court



It has come to the attention of the Justices that the hiring and promotion of employees

within the Probation Department of the Trial Court allegedly are based on reasons other than

merit, which is a matter of concern to the public and to all members of the judicial branch.

Certain other alleged practices and management decisions within the Probation Department have

also been called into question. The Chief Justice and the Justices of this Court, concerned not

only with the proper conduct of judicial administration. but also with the public's perception of

. the integrity of all aspects of the judicial branch, have determined that a prompt, full inquiry into

the practices and procedures of the Probation Department as they relate to these allegations

. should be undertaken immediately. Now therefore, pursuant to the constitutional and statutory

powers of general superintendence of the Justices of this Court,


(1) Paul F. Ware, Jr., Esquire of Boston be, and hereby is, appointed Independent

Counsel with the powers of Special Master and Commissioner to conduct a prompt and thorough

administrative inquiry into alleged improprieties with respect to the hiring and promotion of

employees within the Probation Department; as well as other practices and management

decisions within the Probation Department that have been called into question, and to file with

tbisCourt within ninety days of this date, or as soon as possible, a report of his findings,

conclusions, and recommendations;

(2) the Independent Counsel shall also make such recommendations as he may deem appropriate to the Justices of the Supreme Judicial Court with respect to indications or findings of misconduct, if any, on the part of any employee of the judicial branch; and

(3) the Independent Counsel shall have, in addition to the usual powers of a Special Master and Commissioner, the power to subpoena witnesses and to administer oaths.

Margaret H. Marshall

Roderick L. Ireland

Francis X Spina

Judith A. Cowin

Robert J. Cordy

Margot Botsford

Ralph D. Gants

Entered: May 24, 2010.


The term "document" shall mean the originals (or any copies when originals are not available), and any non-identical copies (whether different from the originals because of notes made on such copies or otherwise) of writings of every kind and description, whether inscribed by hand or by mechanical. electronic, microfilm, photographic or other means as well as phonic (such as tape recordings) or physical reproductions of oral statements, conversations, or events, in your possession, custody, or control. The term document thus includes, but is not limited to, materials such as correspondence, electronic mail, letters, faxes and cover sheets, internal communications, memoranda, notes, reports, diaries, and calendars. The above described items may be available in both hard copy (paper) media and/or in some computer or electronic media, including, but not limited to, magnetic disks, punch cards, magnetic cassettes, floppy diskettes, CDs, and DVDs.

The term «John O'Brien" shall mean John J. O'Brien, Commissioner of the Massachusetts. Probation Department, who currently resides at 45 Cliff Street, Quincy, MA, 02169, and any staff members or other individuals acting, communicating, or purporting to act or communicate on

behalf of John J. O'Brien. .

The term "Thomas Petrolati" shall mean Thomas M. Petrolati, Representative and Speaker Pro Tempore in the House of Representatives of the Commonwealth of Massachusetts, and any staff members or other individuals acting, communicating, or purporting to act or communicate on behalf of Thomas M. Petrolati.

A. For the period.January 1, 1998 through the present, any and all documents relating to John O'Brien.

B. For the period January 1, 1998 through the present, any and all documents relating to the individuals identified in Schedule B.

C. Any and all documents relating to fundraising for or on behalf of Thornas Petrolati, or any campaign or organization to elect Thomas Petrolati, concerning the Massachusetts Office of the Commissioner of Probation andlor the Massachusetts Office of Community Corrections, or concerning any employee of the Massachusetts Office of the Commissioner of Probation andlor the Massachusetts Office of Community Corrections.

D. Any and all documents relating to donations to Thomas Petrolati, or any campaign or organization to elect Thomas Petrolati, by or on behalf of any employee of the Massachusetts Office of the Commissioner of Probation and! or the Massachusetts Office of Community Corrections.



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BefQt~ ~s1dn~.y¢l:4~lliY ~li:BMMtli{~ q~W;\~dtM$, T W:anttQ'ptuvid'e ~OJ1Wfth hrto'['iil'atlon regal'dirl'g your,i'ndhfidual rights and-the ecnsequences of'YPur tesfifyil1g in ~bts 'i?n:)c,e;~d.ih,g: tQd,a~. ~Qth.ifiJ!':r say i$lme.~1dedtu iillp11"'tivatiy Way t11at YOll; would he' less than truthful dudqg the ;GP'l1ts¢"P.fYl;l~!t t~timol1?;: ~nt,l w:~nt ip l:l~. '~l'l;l't¢tb~t,¥$JJ w)'jjet~taJ:td. Yr)l}tihdhii dI,iS.lf!:~hts before you testIfy"

TftSti'fhrm?'t ;~h~~tfi'TX tiiJS.; .pto,~~drn,~.;rl1:~X'l~¢,'d,l~<tlbs:e.d :]tilh~:fut~to. gov_e::fMfl,ent a_g,encfu~~PQtll':$~ate flod,feO¢ff,!'h Tfle'W$~imQlJY ~nq cpncl~rgl:qlJ~l An'~: i,u.f.~r.€ttl¢e$ dN1Wn.UOHtXb'tit l'eSUttiQJi¥ wilt ··ttj:}lllage.:jiv~'fia'iJ~tOth~ $~l?t¢b''fe judtciial CoiWLof' Masi:}adtlisetts" It.ls a'lso Rr9iP~bJe tll~t a:t)yioJorm~ti:pn Y9U pro;vi4~w.illlJ~~ @:aif~ ~¥fii fa.;hl:€(:/lt SQm'¢,'pp.Jtlt 'i'rtth(rD:UU,i7\}tQ ttl\'} :Offlee of':theAttPf.i'I:€ly:GehercdLof·iM~5Sachuse,it'$,J@;6}te Qrm1!)re DlsttictAttcH1ileys,: to state' !1!t~e))(t;~ ;Md ptiJer ~t:)ttf;i,e's ,ot':(l\~{~:mmJ;mjW~~dfh. 'ihJtl'ttdin.$ ,tlfe:!S;;mtttEtbttl$ CPlnfl)fs~l;pll,

It is ffi)J;es.eeabl.eJhat yoll1'tesiiln:Orl)i will ue.maoe,availl:ible to the D-epartmBl1tlof J\l~tjO'~ e . (h.~·'()nit(§:d Stat'e$; AltijrJ)~~'); P,fflt~;Jl)cltlQltiB"llsJhv~i¥'<;idy¢ a~lPf:i¢ti'tS, th~ l1ed.etdfGtUI.1'cl1Jilii and fed~r!;l'f law e.nft>r~~m~r~g~~l~Ie$'i 'DqYi?U l,mae~!l:1~f:l~ 1'1.w~e-.CqJ)s¢qH~t~~$.,

'Yi(ll.:I Jiay¢ the 'l;lght to; r~hla:):n·;s:iJem arid l.il'i'ytllingycm.say 'can he used agtl'i:nst YGlll j n a, ()~)Jrt of laW' QJ:b~;PI)y.'Qfd)¢: MJith~p)' ha}l~ cl¢~trt;b.€}~.

You have the pight ,to. be represented by all i'l'~tomey and to hpye tl~:;J,t a~tQrn~y::lvf),Ha:b:le fot ddJl~jj Jt,(;l't:iPri'dut'itl~:,~he;pq~lrs¢: Qr thi~ ('eSfil)lOny. hI other \-Yoios, 1 wtiJatfoi'd you. an 6ppbrt.unhy. -to leave t4'C:TI)Ot.lJ ~nd p~Tif~r Vlti:q, .y~¥tIr C-W4\1$Q;1 ~llOutd :y,(:;i'l.l,Wl~h ,ti)'(]O$Q:d,h,.frl~ th¢ C.Qi,lr$e Clf MY ·qtle~t{o'i1jhg.,

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