Boston Criminal Attorney Blog

Friday the 13th proved to be definitely not a good day for former Massachusetts House Speaker Tom Finneran. The Massachusetts Board of Bar Overseers (BBO) formally issued its long-awaited decision today, regarding the former Speaker’s future ability to practice law in Massachusetts.

The 12-member board, eight of whom are lawyers, recommended complete disbarment. Only one board member voted to impose a lesser sanction, the two-year suspension previously recommended by the board. That vote was cast by Erik Lund, who wrote that “The circumstances in which Mr. Finneran’s felonious conduct occurred should lead to a lesser sanction than that of disbarment.”

As I blogged on previously, Finneran’s license to practice was suspended for two years in 2007 after he pleaded guilty to obstruction of justice by giving false testimony in a federal lawsuit over his role in a 2002 legislative redistricting plan that diminished minority voting clout. This disbarment recommendation is the result of Finneran’s decision to appeal that Board’s two-year suspension recommendation. Contesting his appeal, the Board’s Office of Bar Counsel, which prosecutes attorney misconduct cases, responded by recommending his complete disbarment, and they won the day. Separately, in December 2008, Finneran also requested that President Bush issue him a pardon before Bush left office. Bush declined to act on Finneran’s application. As I wrote of previously, Finneran doubtless hoped that a Presidential pardon would elevate his chances in his appeal of the Board’s previous two-year suspension. No dice.

In its decision, the Board wrote that “The purpose, but fortunately not the effect, of his false testimony was to impede the claim and to obscure his own role in the development of the illegal plan,” the board wrote in its decision. “Disbarment is the presumptive discipline for a lawyer who is convicted of a felony or a crime involving obstruction of justice of false swearing.” Unbelievably, Finneran’s chief answer or ‘explanation’ to the false testimony charge was to say that an arthritic hip was bothering him, and that he was concerned over his wife’s own orthopedic health condition. I was stunned that this is the best response that he and his lawyer could come up with. Really, I was. Finneran is an extremely bright man. I can’t believe he thought these types of anemic, hollow answers would succeed in his appeal.

While formally speaking the Board’s recommendation is just that - a recommendation – the state Supreme Judicial Court has the final say here, as only it can disbar an attorney - I highly doubt they will not adopt this recommendation. Hence, there is, theoretically, still a “chance” that the SJC will disagree with the Board’s recommendation, and impose a lesser penalty on Finneran. Because of this, Finneran has publicly stated that he plans to appeal the recommendation to the SJC (which would be before a single justice of the court.) But I wouldn’t bank on it.

This is all really too bad. Finneran is an extremely bright man who by most accounts (except those of radio talkmeister Howie Carr, who ironically is a colleague of Finneran's at WRKO-AM 680, as Finneran is the morning drive-time host there) is a good guy. But its almost axiomatic that most ‘good guys’ lose their moral bearings when they walk the halls of power. Now he will be permanently identified with a couple of age-old saws: One, “How The Mighty Fall”, and two, that age-old warning from Lord Acton: "Power corrupts, and absolute power corrupts absolutely."

In my previous post, I commented on former Massachusetts House Speaker Thomas M. Finneran’s lobbying efforts to secure a last-minute presidential pardon for his guilty plea two years ago to federal obstruction of justice charges. On his way out of the White House door yesterday, former President George W. Bush declined to grant Finneran that presidential pardon. Bush gave no reason for his inaction. Some legal and political observers were surprised, given the lobbying connections Finneran recruited in this effort, notably four former Massachusetts Governors, including former governor Paul Cellucci, who has close ties to the Bush family. In their joint letter to Bush, the four former governors wrote that Finneran has been punished enough, and that he has “suffered daily taunts and ridicule from those who feel every elected official is a “common thief.”

Whether our former governors wished to acknowledge it or not, those “daily taunts” come from none other than Finneran’s own colleague at radio talk show station WRKO-AM 680, Howie Carr. Carr is a well-known critic of State House operations and politicians in general, but many observers, including myself, think that Carr’s unrelenting broadcast and published criticism of Finneran may be a ratings ploy to generate more attention and listenership to the station. Regardless, Finneran now looks even worse than he did before this pardon effort. In a piece the Boston Globe was preparing on this story, Finneran reportedly did not return calls from the Globe seeking a comment.

I’m not surprised that Bush declined to grant the petition. Leaving the Oval Office with one of the lowest approval ratings of any President in modern U.S. history, the last thing Bush needed was more criticism in granting a pardon to someone who hadn’t even met the five-year post-conviction waiting requirement, before being eligible to apply for a presidential pardon. As I reported previously, next on Finneran’s to-do list is getting his license to practice law reinstated by the Commonwealth of Massachusetts. Finneran had a hearing on Monday January 20 2009 before the Board of Bar Overseers, the state agency that regulates the legal profession in Massachusetts. Meeting behind closed doors, the Board heard competing arguments on its own previous recommendation that Finneran’s license to practice be suspended for two years. That suspension began in January 2007. Opposing the Board’s two year suspension recommendation is the agency’s own Bar Counsel: That person has recommended complete disbarment.

The decision is expected to be issued next month, in February. I suspect that the Board will veer away from disbarring Finneran. My sense at the moment is that most members would consider that action too harsh, but Beacon Hill is no stranger to seeing strange things happen. We’ll have to wait and see.

Like so many of his predecessors in the office of the Massachusetts House Speaker, former Representative Tom Finneran left the office in disgrace, convicted of obstruction of justice in 2007.

The purpose of this post is not to report this news, as it’s now a few days old, but to probe the question: Should Finneran receive a pardon from Bush? If yes, why? If not, why not?

Finneran was convicted for obstruction of justice during a probe of a state effort to re-draw state legislative districts. Allegations of racial bias surfaced in the re-drawing of key state legislative maps. Some people claimed that Finneran took an active part in trying to redraw the legislative districts in a manner that would have underrepresented minority districts in the state legislature. After insisting on his innocence for some time, he later pled guilty to lying under oath and obstruction of justice, and was sentenced to 18 months' unsupervised probation and $25,000 in fines. In addition, his license to practice law was suspended, he was denied a state pension, and he was forced to resign his then very lucrative job as president of the Massachusetts Biotechnology Council. After leaving the Speaker’s office in disgrace, Finneran landed his current job as a talk show host on WRKO-AM 680 in Boston.

As I said, leaving the Massachusetts speaker’s office either in disgrace, or at the least under questionable ethical circumstances, is nothing new in Massachusetts legal or political circles. Finneran’s own colleague at WRKO-AM680, talk show host Howie Carr, refers to as the office of the Massachusetts House speaker as ”A job title that lately has a higher recidivism rate than godfather of the Gambino Crime Family.” A colorful description, but not exactly inaccurate.

Before even addressing the substantive merits of Finneran’s request, his attempt is defective procedurally: Federal law requires that anyone convicted of, or otherwise pleads guilty to, a felony, as Finneran ultimately pleaded to, must wait at least five years before requesting a Presidential pardon. Finneran has asked that outgoing President George W. Bush not only grant his substantive pardon request, but waive the statutory five-year waiting requirement. In support of his request, Finneran has lined up the support of four former Massachusetts governors: Republicans William Weld, Paul Celucci, and Jane Swift, and also former Democratic governor Michael Dukakis. Finneran's decidedly pro-political establishment radio talk show on WRKO-680-AM/Boston, has doubtless made this task easier, (though Michael Dukakis’ support is a little more confusing, given his well-earned reputation for tolerating no dishonesty whatsoever among elected officials during his three terms as governor. )

In support of his request, Finneran and his supporters state that he “has been punished enough” and is “genuinely remorseful” for his actions in obstructing justice in this investigation. That may be so, but it is hardly grounds alone for issuing a presidential pardon for this offense, let alone waiving the statutory five year waiting period. I suspect the real reason Finneran wants the pardon now, is so that he can cite it in a petition to the Massachusetts Board of Bar Overseers to reinstate his license to practice law. It’s extremely likely that Finneran made this request now, chiefly due to his success in recruiting former governor Paul Celucci to his side in this effort, and due to Celucci’s close personal relationship with President Bush and the Bush family. While Finneran may share party affinity with President-elect Barack Obama, I believe he considers his chances with his Bush connections would be stronger than with Obama’s team. Also, presidential pardons are almost always granted by Presidents who are leaving office (chiefly so they can then dodge any questions later if necessary,) not assuming office as a new President. Hence, for Finneran, it’s either make the request now, while he has the Bush connections in the White House, or wait quite some time. And without a presidential pardon, any efforts to reinstate his license to practice law in Massachusetts, would be made more difficult. Not impossible, but he would have a much easier time of it, if he had in hand a pardon from the President of the United States.

I think the fairer course would be to decline Finneran’s request of the five year waiting period at this time, and require that he wait the full five years like anyone else. It may well be that he has genuine remorse for his actions, but if genuine remorse were the standard for issuing pardons for criminal convictions, our prisons would probably be half-empty, instead of overflowing. If Finneran has the support of these four former governors now, he should almost certainly have them later, when he can make the request of a new and incumbent President, not a lame-duck one on his way out the door, who has already made more stunning mistakes and questionable decisions than any President in modern U.S. history.

A cornerstone of American criminal law is that an accused is innocent until proven guilty. That’s a critical protection within our criminal justice system, and it distinguishes us from the systems that some other countries use. Notwithstanding this precept, it seems that some people, no matter how many times they see the guilty fall, think they can act with impunity to break all kinds of different laws. In my experience as a Massachusetts criminal defense attorney and legal commentator, this is most commonly seen in the areas of organized crime and politics (which some observers would say are not that far removed from each other).

In Massachusetts, we have once again seen the envelope of brazenness pushed to the limit, with the arrest and arraignment earlier this week of state senator Dianne Wilkerson, of Roxbury, Massachusetts. Sen. Wilkerson was charged with 23 separate counts of federal bribery charges, representing the culmination of an 18-month plus undercover investigation by FBI and federal law enforcement authorities. Federal authorities received information from an undercover informant in 2007 that Sen. Wilkerson was accepting bribes from business interests seeking favorable approval for a range of permit applications, including liquor licenses and real estate development approvals, from state and city officials.

What makes the charges against Sen. Wilkerson so challenging to the concept that everyone is presumed innocent until proven guilty, is the fact that FBI agents, posing as businessmen, wore concealed video cameras and microphones in their meetings and “dealings” with Sen. Wilkerson, and what is seen on these videos makes “brazen” seem mild by comparison. Sen. Wilkerson is seen on tape taking thousands of dollars at a time in cash bribes, in hand-to-hand delivery – at one point actually stuffing fistfuls of cash under her sweater, into her bra. Despite this overwhelming evidence in the form of video and audio tape, and informants ready to testify against her as well, Sen. Wilkerson insists that she is innocent of these charges.

What she may mean is “legally” innocent: Give the quantum of evidence against Sen. Wilkerson, her most likely defense in court will be that she was “entrapped” by government authorities. This artful legal defense asserts that, while the defendant may have actually committed the illegal acts he/she is charged with, the defendant would not normally have otherwise committed those acts, if they were not first “enticed” to do so by government investigators seeking to “entrap” her. If this defense argument were accepted by a jury, a defendant so charged could be found not “legally” guilty of the act(s) charged with. In essence, this is a seduction defense, and, while it’s sometimes been successful, it fails more times than it succeeds.

For context, it should be noted that this is not Dianne Wilkerson’s first or only brush with the law. She was previously charged with tax evasion, campaign finance violations, defaulting on student loans, and was previously sentenced to monitored confinement in a halfway house in Boston. Since these newest charges erupted earlier this week, she has terminated her attempts to mount a write-in campaign after losing the state senate primary election in September. Defiant still, she insists she is innocent of these federal bribery charges.

Dianne Wilkerson is entitled to due process, a fair trial, and to a vigorous legal defense. But it isn’t going to be easy.