DiMasi Trial: Presumed Innocent

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.