DiMasi Rolling The Dice? If So, It’s Not A Good Bet

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.

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