Sal DiMasi Sentencing: Just or Just Bad Timing?

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?