THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

DiMasi defense calls just 3 witnesses

Focus shifts to jury instructions

By Milton J. Valencia
Globe Staff / June 9, 2011

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After calling only three witnesses, lawyers in the public corruption trial of former House speaker Salvatore F. DiMasi rested their case in federal court yesterday, concluding testimony in the high-profile criminal trial.

But the legal battle is far from over: Lawyers continue to argue over how to instruct jurors on interpreting charges in the case, a technical but critical strategy for both sides.

Defense lawyers specifically want US District Court Judge Mark L. Wolf to tell jurors that in order to convict DiMasi, they must find that he hatched a kickback scheme and directed payments to be made to associates in exchange for his help — a threshold that they say prosecutors have failed to prove.

Prosecutors, however, say they need to prove only that DiMasi was a willing and knowing participant in what they allege was a conspiracy to help a Burlington software company win state contracts in exchange for hundreds of thousands of dollars.

DiMasi “doesn’t have to think it up. . . . It’s the taking of the official action in exchange for the kickback that the government has to prove,’’ Assistant US Attorney S. Theodore Merritt said in federal court yesterday.

Wolf indicated he plans to spend today listening to prosecutors and defense lawyers debate the issue, though he hinted yesterday he would not go as far as defense lawyers have asked in his instructions to the jury. The judge said lawyers could present their clos ing arguments tomorrow or Monday, more than a month after the May 6 opening statements. The jury would begin deliberating after Wolf finishes his instructions.

“I’m going to define the questions you need answered,’’ Wolf told jurors yesterday before dismissing them. “You don’t have all the information you need to make a properly informed decision.’’

The judge’s timeline was announced after the last witness took the stand. FBI Special Agent Marc Toulouse testified that a key prosecution witness in the case, Joseph P. Lally Jr., told him during a break in Lally’s testimony last month, “Game, set, match,’’ an apparent jab at the DiMasi defense.

Defense lawyers used the agent’s testimony as another attempt to undermine the credibility of Lally, a former codefendant in the case who pleaded guilty and testified for prosecutors that DiMasi was at the center of a kickback scheme.

Defense lawyers have called Lally a liar and fraud who shaped his testimony for prosecutors in hopes they would spare him a prison sentence.

DiMasi, his financial adviser Richard Vitale, and lobbyist Richard McDonough, both longtime friends of the former speaker, are charged with using the speaker’s office to help the Burlington-based Cognos Corp. win two state contracts totaling $17.5 million.

DiMasi, who resigned amid scandal in January 2009 and was indicted in June that year, allegedly pocketed $65,000 that was funneled through a former law associate. The associate, Steven Topazio, testified that he was hired by Cognos, though he performed no work, and that he had turned checks over to DiMasi for referring the client to him.

Prosecutors said DiMasi also planned to benefit in his retirement from the $600,000 that they allege Vitale was paid. McDonough was allegedly paid $300,000 as part of the scheme.

The three defendants have denied any wrongdoing and said the allegations are based on the lies of Lally, a former Cognos salesman and vice president who formed his own company to sell the Cognos software.

They said Lally exaggerated his ties to DiMasi as part of his sales pitch, sparking a false conspiracy theory.

The brief defense strategy surprised some trial observers. Over 16 days of testimony, prosecutors had called 24 witnesses.

Defense lawyers have said that they have no need to present any more witnesses and that it was the prosecution’s burden to prove the charges against their clients.

Legal analysts said the defense team may have decided against calling witnesses who could then be questioned by prosecutors. “Once you start putting up a case . . . then the government can attack your case,’’ said Michael Kendall, a former federal prosecutor. “Strategically, to put on a weak case is a very bad idea.’’

The brief defense also suggests the lengths to which lawyers for DiMasi and his associates are relying on jury instructions and case law, particularly a US Supreme Court ruling last year that narrows the scope of evidence required to prove the type of so-called honest-services charges used in this case.

The ruling states that failure to disclose a conflict of interest does not necessarily constitute a crime and that prosecutors must prove payments were received in exchange for official action.

“It seems to me that’s essentially what this case is about, whether DiMasi got paid to support the Cognos contract,’’ said Stephen Huggard, a former chief of the public corruption unit in the US attorney’s office. “A lot of these cases come down to jury instructions, and they’re very important. If you feel like you can shift it one way or another, that’s important.’’

Huggard also said it should come as no surprise that the defense offered a quick case, because “the rule of being a defense attorney is first, do no harm.’’

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

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