Wilkerson attorney calls for case dismissal

Cites prejudicial pretrial publicity

By Gintautas Dumcius
State House News Service / November 3, 2009

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Citing “inflammatory’’ media coverage of her arrest on corruption charges, “outrageous’’ behavior of federal prosecutors, and potential under-representation of minorities on a jury, the attorney for former state senator Dianne Wilkerson called yesterday for either a dismissal of charges or a change of venue for her impending trial.

In a motion and 10-page accompanying memorandum filed in the US District Court of Massachusetts, attorney Max Stern castigated the US attorney’s office and reporters and charged them with branding Wilkerson, a Roxbury Democrat, as guilty before a grand jury had indicted her on Nov. 18, 2008, on bribery charges in connection with the use of her office.

Wilkerson was arrested three weeks before the indictment.

“Under these circumstances, the indictment must be dismissed,’’ Stern wrote. “In the alternative, because Ms. Wilkerson cannot possibly receive a fair trial in Massachusetts in the wake of such unprecedented prejudicial pretrial publicity, a change of venue must be granted.’’

Stern also filed a separate motion to sever Wilkerson’s case from that of Councilor Chuck Turner’s because “they are not alleged to have participated in the same series of acts or transactions which constitute an offense or offenses.’’

Both Wilkerson and Turner, who has been charged with accepting a $1,000 bribe and making false statements to the FBI, have pleaded not guilty to the charges.

Stern could not be reached for comment yesterday evening. In an e-mail, a spokeswoman for the US Attorney’s office declined to comment “as it is an ongoing investigation.’’

The trial is scheduled to start in early spring 2010.

In arguing for moving the trial, Stern said statistics show that African-Americans are underrepresented in jury panels in the Eastern District of Massachusetts.

“Given that a black defendant is already at a distinct disadvantage in this district when it comes to the make-up of her jury, heaping additional prejudicial factors on her nearly guarantees that she will not be able to get a fair trial,’’ he wrote.

Stern also slammed the FBI affidavit that the US attorney’s office immediately released after Wilkerson’s “dramatic and unnecessary’’ arrest on Oct. 28, 2008, which came a week before voters in the Second Suffolk District headed to the polls for a face-off between Wilkerson and Sonia Chang-Diaz, who won the seat.

Stern pointed to the case of former Providence mayor Vincent “Buddy’’ Cianci, who was convicted on racketeering charges. In that case, the court ruled that the release of a detailed affidavit could risk “prejudicing the defendants’ rights to a fair trial,’’ he wrote.

“That is, of course, precisely what has already occurred here, and it has occurred because of the outrageous, calculated, manipulative actions of the government, actions that violated Ms. Wilkerson’s due process rights. For this reason, the indictment should be dismissed.’’

The release of the affidavit and photographs of Wilkerson allegedly accepting the bribes “compounded the taint created by the arrest’’ and “set forth in excruciating detail the contents of the audio and videotaped meetings between Ms. Wilkerson and the government’s confidential source, providing the public with a sensational, blow-by-blow description of the alleged crimes,’’ he wrote.

The affidavit also unnecessarily included Wilkerson’s record of campaign finance violations, prior federal conviction for failing to file tax returns, and a probation violation, he said.