Boston Criminal Attorney Blog

As I write this post tonight, I’m thinking about shame and loss.

I’m writing about former Massachusetts House Speaker Sal DiMasi’s sentencing today in federal court in Boston. About four days ago earlier this week, I communicated with several Boston media reporters, opining my professional opinion, as a Boston Massachusetts criminal defense attorney, of how many years that DiMasi would be sentenced to. My prediction as of September 5? Eight years. The sentence handed down today by U.S. Judge Mark Wolf? Eight years.

While I felt all along that my instincts were accurate, I was saddened that I had to make them at all. I was saddened that DiMasi brought himself to this position. It was a shame that someone who has by many, many accounts done a great deal of good over thirty years of public service, would come to this kind of an end. It was a shame that a member of the bar, an esteemed criminal defense attorney, had been brought to such disgrace. And it was a shame that the public’s trust in elected officials has been brought ever lower. As to loss, the legislature lost a talented member and leader; Mr. DiMasi has lost his name, his freedom for several years, and his lifetime state pension of approximately $60,000 per year. He is financially broke, in debt, and (to quote his own words at his sentencing hearing,) “virtually unemployable.” And perhaps worst of all, his family, especially his wife Debbie who is battling breast cancer, has lost him, for a long time.

It’s easy to play Monday Morning Quarterback, isn’t it? I don’t wish to engage in that too much, but I will say this: Long before this verdict and sentencing, (last June, in fact,) I publicly wrote that DiMasi should seriously consider any reasonable plea deal that might be offered. While I want to stress that I don’t know if one was offered, it’s not at all uncommon for such plea negotiations to take place, and if that was explored and DiMasi refused a reasonable offer that was less than the eight years he has been sentenced to, then someone made a big mistake here – maybe DiMasi himself. Perhaps DiMasi’s legal defense team did obtain a plea deal with federal prosecutors and advised DiMasi to take it, yet he refused. Perhaps his attorneys told him to not even consider a plea bargain, no matter what the details. I don’t know. And it’s important to say that the client is the person who makes the final call on any such decisions – not the client's attorney. But if a reasonable plea deal amounting to less than an eight year sentence was offered and it was refused, then DiMasi’s poor judgment didn’t end in the State House; he carried it over to the Court House.

I’m a Boston criminal defense lawyer – and I’m aggressive; I don’t “roll over” easily. But before the trial began, it was clear that the evidence amassed in this case against DiMasi was enormous – and that fact that the government’s key witness was shown leniency for his cooperation was not going to destroy his credibility in the eyes of the jury. It just wasn’t. Eventually, the prosecution brought in a virtual parade of witnesses severely damaging to DiMasi – from Governor Deval Patrick to a cabinet secretary, to many others. From a defense attorney’s perspective, it was painful to watch. I wish none of this had happened, but it did.

Once he was convicted at a jury trial, in my view, the entire game was over. Yes, his attorneys vowed – as they should have – an appeal, but the facts behind his conviction and the case law that would be cited in any appeal just don’t support an optimistic outcome. At that point, looking ahead to sentencing several weeks away, damage control needed to come into play. And it didn’t. The only thing that was played up, was DiMasi’s nonsensical, and by many observers accounts, arrogant denial. Without doubt that factored into the judge’s sentencing decision here: U.S. District Court Chief Judge Mark Wolf made several pointed observations about DiMasi’s apparent lack of genuine contrition, noting, “It seems to be an attitude that if somebody supports causes that you care about, some corruption is to be expected, and I think that’s a pernicious paradigm.” “This case has been very dispiriting. It demonstrates recurrence of corruption in state government … it will undoubtedly heighten cynicism of public officials in the short-run,”; and : “One of the things I think about in connection with this case, which person is more dangerous in our country? Somebody who is doing what everybody he knows does, selling crack on the corner for maybe 75 or 50 bucks, or people who are undermining our democracy by … conspiring to sell public office?” DiMasi’s strutting and smiling for the cameras last June at his trial, and far worse, his nonsensical comments to the press after his conviction, made things far, far worse for him when it came to sentencing.

This was the harshest sentence ever handed down in a Massachusetts public corruption case involving an elected official. In principle, I don’t object to someone who has been found guilty of a crime being reasonably punished for that crime. The question is always, what is “reasonable”?; what is “just”?

That’s a tough question, but one thing is certain: DiMasi suffered from bad timing: The judicial mood has drastically shifted when it comes to public corruption. After two former Massachusetts House Speakers, Charles Flaherty and Thomas Finneran, were convicted of corruption charges but escaped any prison sentences, public and media outrage grew. (In fact, Finneran is a well-paid talk show host and lobbyist now.) In just the past year, two black politicians, former Massachusetts state senator Dianne Wilkerson and Boston city councilor Chuck Turner were convicted of corruption charges in the same court last year. Each of them was convicted of taking far less money in payoffs than DiMasi, and they received given modest prison terms of approximately three to three and a half years. Given this attitudinal and political backdrop, there was no way DiMasi was going to receive less than the eight years I predicted.

But I think it’s fair to say that had these prior four cases never happened, Sal DiMasi would not be facing the prison term that he is tonight. Is that fair?

Here in Boston legal circles and in the Boston media, the past six weeks have been quite abuzz over the public corruption trial of former Massachusetts House Speaker Salvatore F. “Sal” DiMasi and his two co-defendants, Richard Vitale and Richard McDonough. DiMasi, Vitale, McDonough, and former Cognos salesman Joseph Lally were all indicted by the Boston U.S. Attorney’s Office on public corruption charges almost two years ago, for alleged influence-peddling and corruption in the awarding of approximately $20 million in software contracts by the state to a company then known as Cognos. The company has since been bought by IBM.

In the past month, the government spent almost three weeks putting on 24 prosecution witnesses against DiMasi and his two co-defendants. Those witnesses included former cabinet secretaries, Dimasi’s own former press spokesperson, DiMasi’s own personal assistant, and even governor Deval Patrick. From the perspective of a Boston Massachusetts criminal defense attorney, it was a withering experience. DiMasi’s lawyers did the best they could on cross-examination to weaken this testimony. After the government rested its case, DiMasi’s defense put on only three witnesses. On more than one occasion during the course of this trial, I have been asked by various media outlets in Boston to comment on this fact.

In some of those comments, I stated that the fact that DiMasi's defense offered only three (fairly weak) witnesses, after the prosecution spent in excess of three weeks putting on 24 witnesses against him - including the Governor, former cabinet secretaries, members of DiMasi's own legislative staff and DiMasi's own law associate - did "not bode well" for DiMasi. I believe that comment reflected the reality of this situation, I stand by the comment, and I believe that if I said otherwise, I wouldn’t be a very good Dedham Massachusetts criminal defense lawyer. Regardless, that does not mean that DiMasi or his co-defendants are guilty. I’ve stated previously to reporters and will say here again: DiMasi and his co-defendants are presumed to be not guilty, prior to a jury delivering any verdict. It is the government’s burden to prove that these defendants are guilty of the crimes they are accused of – not the other way around. No, this trial has not gone well so far for these defendants, in my professional view. But that does not mean that all is lost.

If I were defending this case, and my witness list were as sparse as the defense list was here, I would concentrate my efforts on forging jury instructions that were as strictly-worded, and tightly constructed as possible. By that what I mean is the following: the Federal statute that these defendants are charged with violating is considerably vague in the type of conduct that it makes “criminal.” The more difficult it is for the jury to find that the actions of these men violated that statute, and hence were “criminal,” the more likely it is that they would return a not-guilty verdict. It is the prosecution’s burden to prove not merely that the defendants’ alleged acts were not perhaps laudable, or not perhaps desirable in an ideal world – but that they were criminal – in relation to the applicable federal statute. The prosecution must prove this criminal guilt beyond any reasonable doubt. DiMasi’s legal team is comprised of experienced defense attorneys, and I am sure that is what they have done. No defense attorney can “manufacture” favorable evidence, or favorable witnesses. As an ethical defense attorney, you can only do the best you can, with the facts, the evidence, the resources, and the law in front of you.

Tomorrow morning, U.S. District Court Chief Judge Mark L. Wolf will deliver the jury instructions that prosecutors and defense attorneys in this case have fought vigorously over. Using those instructions, the jury will then deliberate the fate of these three men. Until then, let us remember this: The U.S. Constitution says these men, and all who are accused of crimes, are not guilty. “Presumed Innocent” should be known as a legal principle that is a cherished guardian to us all – not just the title of a Scott Turow novel.

From a total of over 80 potential jurors, sixteen have advanced to the final round of jury selection, as of Friday, April 29 2011, in the corruption trial of former Massachusetts House Speaker Salvatore F. DiMasi.

The sixteen, however, isn’t enough. U.S. District Court Judge Mark Wolf must select an additional 20 jurors before the pool is finally narrowed down to the 16 people who will actually hear the case. 12 of those 16 will act as primary jurors, and 4 will serve as alternates in the event that one or more jurors are excused or dismissed for some unforeseen reason. Wolf has met personally with 37 members of the jury pool, to discuss their responses to 43 separate written questions that have been posed to each of them. The questions are designed to screen out biases, possible prejudices and/or pre-conceived opinions about the defendants or the case. Jurors were asked their opinions about lobbyists, accountants, Gov. Deval Patrick and other elected officials, who may be called as witnesses. Among the jurors who were dismissed was a woman who said she held a “jaded opinion” of elected officials, and a man who disobeyed the judge’s instructions not to research the case online, as well as another man who was overheard by a potential juror as saying “all politicians are guilty of something.”

DiMasi, accountant Richard Vitale and lobbyist Richard McDonough are accused of political corruption charges in allegedly steering two state contracts worth $17.5 million to the Burlington software company Cognos, in return for hundreds of thousands of dollars in hidden payments. DiMasi is accused of collecting $65,000 in kickbacks. Vitale allegedly received $600,000, and authorities said McDonough got $300,000. As a Boston criminal defense lawyer, I have to say I’m quite surprised at DiMasi’s apparent refusal to this point, to accept a possible plea agreement with the U.S. Attorney for Massachusetts. Note: I emphasize “apparent” refusal, as I don’t know whether prosecutors have, in fact, offered any plea deal to DiMasi - but it’s not at all uncommon that such possibilities would be pursued between prosecutors and defense counsel, prior to trial. I would find it odd if I learned that prosecutors never proffered any kind of a plea deal in this case, at all. Also, I don’t know whether DiMasi’s attorney has advised his client to consider any plea if one was actually offered, or not. And most important, if DiMasi’s lawyer had recommended such an option, DiMasi is the one who would make the final call on that, as the client is the person who makes these final decisions, not the attorney. Hence, as this case appears headed for trial as of this writing, I have to assume one of three things: 1) The U.S. Attorney did not offer any kind of plea deal; 2) They did proffer such a deal, but DiMasi’s attorney advised his client against the deal and DiMasi agreed with his attorney’s advice; or 3) Prosecutors offered a deal, DiMasi’s attorney recommended he take it, and DiMasi refused his attorney’s advice. There aren’t many other answers to explain why DiMasi is barreling toward a jury trial here.

And if this case is tried and goes to a jury, I think DiMasi’s going to be very sorry. His co-defendant, Joseph P. Lally Jr., 50, of North Reading, got smart and cut a deal with prosecutors to plead guilty last month to conspiracy and fraud charges. In exchange, the U.S. Attorney’s office is expected to recommend a prison term of no longer than three years, and allow him to keep his home and bank account. Prosecutors had accused Lally of receiving $3.7 million in commissions selling the state two multimillion-dollar software contracts from the Canadian company Cognos as part of a bid-rigging scheme to pay DiMasi $65,000 in bribes, which it is alleged he tried to disguise as lawyer referral fees. Two other men, DiMasi’s longtime friend and financial advisor Richard Vitale, 66, of Stoneham, and Cognos lobbyist Richard McDonough, 65, of Foxboro, are also being tried for their roles in the alleged kickback scheme, with prosecutors claiming that each of them received kickbacks amounting to hundreds of thousands of dollars. I wouldn’t be surprised if they turned on him, also. Additionally, Steven Topazio, DiMasi’s former law practice associate, has already reportedly provided prosecutors damaging information about DiMasi’s role in the plan.

As if all this weren’t enough, the judge hearing the case, U.S. District Court Chief Judge Mark L. Wolf, has repeatedly telegraphed several signals that don’t bode well for DiMasi. Most of these have been seen in Wolf’s denial of key pre-trial motions filed by Dimasi’s lawyer regarding evidentiary and testimonial issues. Putting the nail in the coffin before the funeral, has been the very clearly communicated attitude recently of the U.S. District Court in Boston, on the subject of political corruption charges: Recently, two Massachusetts politicians charged with kickback schemes were sentenced to considerable prison sentences: Former state senator Diane Wilkerson and Boston city councilor Chuck Turner. In delivering each of these sentences, the judges went to considerable lengths to publicly convey the message that the court will no longer tolerate political corruption, and that the days when such defendants got a “slap on the wrist” are over (read: Former Massachusetts House Speakers Charles Flaherty and Thomas Finneran, neither of whom received prison time.)

Against this entire backdrop, as a Boston white-collar defense lawyer, I cannot fathom why DiMasi is going to trial, instead of pursuing a plea deal. But as I said, there are three potential answers to that question, and I don’t know for certain which one is controlling. But if DiMasi is headed to this jury as the result of turning down a plea offer that was put in front of him, I think he’s made an incredibly foolish decision.

I’ve been a trial lawyer for quite some time now. I’ve seen my share of clients who are outright innocent; guilty of a crime but legally “not guilty” due to a legal issue or procedural defect; and then those that are outright guilty. You can’t try cases from both the prosecution as well as the defense table, as I have, and not develop a keen sense of who falls into which of these categories. The skill comes with the territory.

Thus it is with this skill that I comment today on the long, strange trip of Boston city councilor Chuck Turner. The hard-to-miss Mr. Turner seems, like Diane Wilkerson, (the disgraced former state senator who pled guilty earlier this year to several federal corruption charges,) comprised of an arrogance that defies description. (Another hard-to-miss personage, you will recall Dianne Wilkerson as she belonging to the “publicly-stuffing-illegal-cash-bribes-into-her brassiere-in-a-restaurant, then-denying- it” category of arrogance. Turner was investigated by the Boston office of the FBI along with Wilkerson, as part of an undercover FBI probe into political corruption in Boston. He is now on trial in U. S. District Court in Boston, charged with extortion and counts of political corruption.

Despite videotape evidence showing a Boston businessman (Ronald Wilburn,) handing to Turner what appears to almost every reasonable observer to be a cash bribe (offered in exchange for quick approval of a city liquor license,) and despite testimony from Wilburn that he gave Turner that money as a bribe for that license, Turner has for almost two years steadfastly denied he ever took a bribe from Wilburn. To assure full disclosure, it should be noted that Wilburn was cooperating with the FBI, and was paid compensation by the FBI as part of this investigation. It should also be noted that the practice of compensating witnesses in a federal investigation is entirely legal, and has been done in several previous cases. Regardless of this arrangement being legal, as a criminal defense attorney, I don’t think it’s smart at all, as it just hands the defense a basis upon which to attack the credibility of such a witness. But that doesn’t remove the fact that Turner is on tape, and is recorded accepting cash in-hand in a tacit exchange for a liquor license.

What is it with people like Turner, who have been caught blatantly on videotape in the act of illegal, criminal acts, and yet deny those acts ever took place at all? As a Massachusetts criminal defense lawyer, it goes without saying that I know that every possible legal avenue of defense must be utilized on a client’s behalf. I respect those legal devices, strategies and maneuvers, and I utilize these mechanisms all the time in my practice. These technicalities deal with the detailed intricacies of law, such as whether a search and seizure was conducted according to constitutional limitations, whether or not certain testimony is admissible, and whether or not precedent exists to support a particular defense theory. That's interesting, and laudable, advocacy.

The issue here for me (and for so many other people,) and my question to someone like Turner, is instead: “At what point can you actually look in the mirror, or show your face in public, and not feel like a complete and total fool denying what is patently obvious to anyone – and not feel, literally, like a laughing-stock?” Faced with such overwhelmingly damning visual evidence, when does the point come when someone in Turner’s position can say “I was caught right on tape. Unless there are legal grounds that can make the tape completely inadmissible, then the time has come to admit what I’ve done, make the best plea deal that I can, and try to grow from this”? If Turner (or Wilkerson before him,) had not denied doing on videotape what is so patently obvious to any rational observer, but instead argued that the tape was for whatever legal reason inadmissible, that would be one thing. That would be an intellectually and legally interesting contest.

But for both of them to deny that they ever did what is so obvious to anyone with two eyes – that’s what kills me, even as a Massachusetts defense lawyer with many years behind me. Turner is not saying, “I’m not going to admit or deny what this videotape shows, but I am claiming that the tape is inadmissible for the following legal reasons: A, B, C …” Instead, shockingly and laughably, he’s saying, “I have no memory of meeting with the person on that tape; I don’t recall who the person meeting with me is (Ronald Wilburn, the man handing him $1,000.00 in cash as a bribe,) and the tape doesn’t show me accepting any money.” Some news to Mr. Turner: The only thing that is likely to get you, is a laugh track as you’re escorted to prison. (I could be wrong about this jury, but that’s my take as of now.)

What’s even more stunning, from a defense attorney’s perspective – is Turner’s insistence (obviously, against his attorneys’ legal advice) to actually take the witness stand in his defense. Not only did his lawyers advise (read: beg) Turner not to do this, a friend of his attending the trial actually grabbed him by his coat sleeve yesterday, pleading with him to change his mind. But arrogance of this type knows no reasoning or rationale. A defendant in a criminal trial has the right to not testify or act as a witness against himself. By taking the stand yesterday and today and delivering the literally unbelievable drivel that he doesn’t ever recall the meeting with Wilburn which the tape shows, that he doesn’t recall even who Wilburn is, that he didn’t accept any money even though the tape shows cash is passed into his hand by Wilburn – Turner subjected himself to cross-examination by the prosecution. The result was, depending on whether you’re a clear-thinking person or not – either downright laughable, or downright painful. It was reported that Turner’s own lawyer sunk down in his chair as Turner took the stand, cringing at the train wreck he was powerless to stop.

If you want a glimpse at Turner’s arrogance, take a look at his political website. (I won’t link it here.) It’s introduced with a large caption of “Bald, Bold and Bright”. On it, Turner proclaims that “Despite 45 years of dedicated service to the people of my community and the people of Boston, the federal government … (is) attempt(ing) to convince the public that I am guilty of extortion of $1000 and lying to FBI officials. … I believe the trial will enable the public to recognize the unethical and immoral behavior of those who are conspiring to silence me.” Tell us: Silence you from exactly what, Chuck? God, is this pathetic. Of course, almost anyone who says this, is (as previously with Dianne Wilkerson’s case,) accused not only of being biased, but "racist." I actually read in The Boston Globe last week, that a supporter of Turner’s actually had the temerity to justify her claims of his innocence with something directly along the lines of “He’s our Martin Luther King, Jr.” What a disgusting, perverted thing to do – to compare a moral giant like MLK Jr., to the likes of this man. What an insult to Dr. King, one of the greatest moral leaders of our century, a figure on the same level with Ghandi.

Earlier today, when Turner was entering the courthouse, he was asked by reporters if he had considered (as any sane person in his position would have done,) a plea deal. His response? “Do I look crazy to you?” Yes, Chuck, you do. You look it, you sound it, and you either are it, or you’re one of the most arrogant people alive today. And as to that website tagline, “Bald, Bold and Bright”, I’d suggest a more fitting moniker: “Dumb, Defiant, and In Denial”.

I’ve seen juries do some strange things in the past, but regardless of what verdict is returned, this whole trial has been laughable. It’s been embarrassing to watch. Don't be surprised that I say this, even though I'm a criminal defense attorney. To quote Kenny Rogers, "You gotta know when to hold 'em, and when to fold 'em." The time long since passed when Chuck Turner should've folded 'em. If this jury acts with any sanity, the only thing he's going to be folding in the future, is bed sheets in a prison laundry.

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.