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US judge rejects bid by DiMasi defense

Lawyers asked him to bar testimony

By Milton J. Valencia
Globe Staff / April 20, 2011

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The federal judge overseeing the public corruption trial of Salvatore F. DiMasi, the former Massachusetts House speaker, and two codefendants rejected a request by their defense lawyers yesterday to bar the testimony of a key prosecution witness.

The lawyers had argued that Joseph P. Lally, a former codefendant who was at the heart of an extortion scandal, had effectively been bribed by federal prosecutors, who made a deal with him that would sharply reduce his jail sentence if he pleaded guilty and cooperates.

Prosecutors argued, and US District Court Chief Judge Mark Wolf agreed, that the courts have long allowed prosecutors to offer a plea deal in exchange for a defendant’s cooperation and that such deals are common.

“They are entirely standard,’’ said Assistant US Attorney Kristina Barclay.

Lally, who had faced nine years in jail, pleaded guilty in March to conspiracy, extortion, and mail and wire fraud, and prosecutors will recommend that he serve two to three years in prison. He will also be allowed to keep his North Reading home and some $30,000 in bank accounts.

Martin G. Weinberg, a lawyer for DiMasi’s friend and codefendant Richard Vitale, argued yesterday that Lally was offered something of value, effectively in the form of a bribe, in exchange for his testimony.

“That’s an enormous incentive . . . to provide testimony that would aid one party at the expense of another,’’ Weinberg said. “This kind of asymmetrical, substantial assistance, witness reward system is wrong.’’

Thomas R. Kiley, DiMasi’s lawyer, also argued that the cooperation of Lally was different than other plea bargains because prosecutors agreed not to seek the forfeiture of his assets, putting a monetary value on his cooperation.

But Wolf said courts have upheld a defendant’s right to change his plea and reach an agreement with prosecutors for a reduced sentence. Wolf also said prosecutors can never guarantee that Lally will be able to keep his assets, pointing out that he has discretion as a judge to levy fines.

Wolf said that courts have allowed reduced sentences for people who plead guilty because, “someone who has cooperated sends a signal of the way he plans to live the rest of his life.’’

The request was one of several that lawyers in the case debated yesterday and will continue to debate over the next several days as the corruption trial nears. Jury selection is slated to begin Tuesday.

DiMasi and his codefendants are charged with conspiracy, extortion, and mail and wire fraud. Prosecutors allege they conspired to steer $17.5 million in state contracts to Cognos, a Burlington computer software firm, in exchange for cash. Lally was an independent sales agent at Cognos, and Vitale and another DiMasi friend, lobbyist Richard McDonough, collected big fees from him.

Lally netted $2.8 million in commission from Cognos, and he paid $300,000 to McDonough and $600,000 to Vitale, according to prosecutors.

Another witness, Steven Topazio, is expected to testify that he received $125,000 from Cognos, though he provided no services for the firm, and forwarded half of the money to DiMasi. Topazio was a former law associate of DiMasi.

Among the list of questions Wolf began considering yesterday before the case goes to trial is whether to allow prosecutors to disclose that certain witnesses were granted immunity and how to introduce evidence of the registration requirements of lobbyists.

Wolf is also considering a request by Vitale’s lawyer to exclude evidence the government considers “acts of concealment and consciousness of guilt.’’

That evidence includes the disclosure that Vitale concealed the $600,000 he received in the Cognos deal from his law firm, in violation of the firm’s partnership agreement. Also, prosecutors say, Vitale left a voice mail with partner Richard Caturano seeking to have e-mails deleted from the firm’s server after he learned about a Globe inquiry into his connections to DiMasi.

Vitale allegedly requested and received from an employee a file she kept for him containing copies of documents he had hand-delivered to DiMasi at the State House, including copies of the legislative language for the software contract provided by Lally.

The request was made after a series of Globe articles in the spring of 2008 exposed DiMasi’s involvement in the Cognos deal.

Weinberg argued that the evidence shows no evidence or consciousness of guilt and that the evidence is irrelevant and should be excluded.

But prosecutors say the evidence shows that Vitale reacted to the Globe articles.

“The evidence will show there are phone calls back and forth between the four defendants, including Mr. Vitale,’’ said Barclay, the assistant US attorney.

“It’s trickling out,’’ she said, “and he knew there was more to come.’’

Milton Valencia can be reached at mvalencia@globe.com.