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DiMasi defense targets former codefendant

Seeks records of associate who struck plea bargain

By Andrea Estes
Globe Staff / April 19, 2011

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Just days before the public corruption trial of Salvatore F. DiMasi, the former Massachusetts House speaker, and two codefendants is set to begin, defense lawyers are scrambling to discredit a key government witness, a former codefendant who has agreed to testify against them.

One defendant has subpoenaed computer and tax records of Joseph P. Lally, the salesman who sold the state two multimillion-dollar software contracts at the heart of the case against the three remaining defendants. The subpoenas issued by Richard Vitale may be debated at a federal court hearing today, the final hearing before the trial begins next Tuesday.

Lally, who has already pleaded guilty in a deal with prosecutors that requires him to testify against DiMasi and Vitale, has asked US District Court Chief Judge Mark Wolf to block the subpoenas. He also asked Wolf to reject a scaled-down motion by Vitale’s lawyer, Martin Weinberg, that Lally be ordered to turn over all e-mails and computer searches that contain 34 specific words, including “prison,’’ “deal,’’ “betting,’’ “casino’’ and “bookie.’’

“The Lally subpoena is the quintessential fishing expedition,’’ wrote Lally’s lawyer, Robert Goldstein, “and Mr. Vitale should not be permitted to sink a line in a pond so vast as Mr. Lally’s computers.’’

Weinberg would not say exactly what he is looking for, but the search terms, including “bankruptcy’’ and “forfeiture,’’ suggest he wants to determine what Lally did with the $2.8 million in commissions he netted on the two Massachusetts contracts. The public is footing the bill for Goldstein, after a federal judge found Lally could not afford to pay a lawyer himself.

In the subpoenas, Vitale asked Lally to bring the records to the courthouse April 26, the day the trial is scheduled to begin.

Weinberg said the defendants are entitled to the information requested in the subpoena.

“He’s clearly a pivotal witness,’’ said Weinberg. “His credibility is part of the cornerstone of the case. “ Weinberg has also filed a motion to prevent Lally from testifying at all, saying that the plea deal has given him an incentive to lie. The judge has not ruled on that motion.

DiMasi and his codefendants are charged with conspiracy, extortion, and mail and wire fraud. Prosecutors allege they conspired to steer $17.5 million in contracts to Cognos, a Burlington software firm, in exchange for cash. DiMasi collected $65,000 funneled through his former law associate, Steven Topazio, prosecutors allege.

The others, Vitale and another DiMasi friend, lobbyist Richard McDonough, collected big fees from Lally, who was working as an independent sales agent for Cognos.

Of the $3.7 million in commissions Lally made from the sales, he paid $300,000 to McDonough and $600,000 to Vitale, according to the federal indictment. Neither McDonough nor Vitale reported the payments publicly.

Last month, Lally pleaded guilty in exchange for a sentence of two to three years in federal prison, a fraction of the sentence he would have received if he had been convicted by a jury.

As part of the deal, Lally must cooperate fully with prosecutors and testify against his former codefendants, if prosecutors request it.

Topazio is expected to testify that he received $125,000 from Cognos and forwarded half of the money to DiMasi. He performed no services for the software firm.

At today’s hearing, prosecutors and defense lawyers will argue motions to prevent the jury from hearing certain information. Defense lawyers hope the judge will throw out evidence that DiMasi and Vitale tried to cover up their actions after the Globe started asking questions about the contracts in 2008.

Prosecutors want the judge to bar lobbying specialists from testifying for DiMasi and the others.

Defense lawyers hope to call longtime Beacon Hill lobbyists Arline Isaacson and Judith Meredith, who may say that what Vitale did — advocate for Cognos and submit to DiMasi draft legislation that ultimately funded the software contract — is both legal and similar to what lobbyists do routinely.

Andrea Estes can be reached at estes@globe.com.