Patrick listed as possible witness in DiMasi trial

Three former aides also tapped to appear

By Andrea Estes and Shelley Murphy
Globe Staff / February 11, 2011

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Federal prosecutors have included Governor Deval Patrick and three former aides on their list of potential witnesses for the upcoming corruption trial of former House speaker Salvatore F. DiMasi, setting the stage for a rare appearance of the state’s chief executive at a criminal trial.

US Attorney Carmen M. Ortiz placed Patrick’s name on the confidential witness list filed last week in federal court, according to several sources with direct knowledge of some of the names on the list. Not since 1995, when William F. Weld testified in the influence-peddling trial of former state senator Henri Rauschenbach, has a sitting governor been called to testify in a criminal case.

Prosecutors are not required to call every witness on the list, but they may want to question Patrick and his aides about whether DiMasi lobbied the administration on behalf of Cognos, a Burlington company that was awarded a $13 million contract by a branch of the Executive Office of Administration and Finance in August 2007. DiMasi has denied pressing the administration on behalf of Cognos. However, according to Patrick’s calendar, the governor met twice with DiMasi privately in the weeks before Cognos was notified it would receive the state contract.

“It’s unusual, but not unique’’ to call a governor as a witness, said former US attorney Donald K. Stern, who served between 1993 and 2001. “I don’t remember ever calling a governor. But if a governor’s or high government official’s testimony is relevant and needed, a subpoena is perfectly appropriate.’’

In a statement, Patrick’s chief legal counsel Mark Reilly said, “The administration has and will continue to cooperate with the US attorney’s office in whatever way we are asked. And, to be clear, there are no allegations that any current or former member of the administration has engaged in any wrongdoing.’’

DiMasi and three associates are accused of conspiring to steer two multimillion dollar contracts to Cognos, in exchange for hundreds of thousands of dollars. DiMasi is accused of pocketing $57,000 funneled to him through a former law associate. Steven Topazio, the former associate, is expected to be the government’s star witness.

DiMasi, who resigned as speaker amid several investigations, faces nine counts of wire and mail fraud, extortion, and conspiracy. Each of the charges, except conspiracy, carries a maximum penalty of 20 years.

Also standing trial are Richard D. Vitale, DiMasi’s former accountant, Richard W. McDonough, DiMasi’s friend and Cognos’s former lobbyist, and Joseph P. Lally Jr., the independent sales agent who sold the state the two software contracts. The trial is to begin in late April.

US District Chief Judge Mark L. Wolf has ordered the witness list kept secret, but four sources said the list includes not only the governor but also his former chief of staff and current political consultant, Doug Rubin; David Morales, former deputy chief of staff who is now commissioner of the Division of Health Care Finance and Policy; and Leslie Kirwan, former administration and finance secretary. Defense lawyers will file their own witness lists next week.

A spokesman for the US attorney declined to comment on the names on the witness list.

The testimony of Patrick and his aides could open a window on a delicate time when the fledgling administration was trying to find its footing after a series of missteps in early 2007. In that period, Patrick’s relationship with DiMasi, the second most powerful official in state government, was tense.

DiMasi criticized him openly and delayed acting on the governor’s high-priority initiatives, such as closing corporate tax loopholes and his $1 billion life sciences proposal.

A state official told investigators that Lally and an administration technology official both said that DiMasi wanted to trade with the governor: Cognos would get the software contract in exchange for something the governor wanted.

But Rubin and other Patrick aides have repeatedly asserted that they had nothing to do with the Cognos contract, which they said was handled by the state technology official, Bethann Pepoli, who was a holdover from the Romney administration. Rubin and Morales, who testified before the grand jury that handed down the indictments, have denied any deal between the administration and DiMasi.

The administration eventually canceled the contract and got the state’s money back in May 2008. Six months before that, administration officials also reported their concerns about the bidding process to Inspector General Gregory Sullivan, who had already begun investigating, tipped off by a state employee. Sullivan found the Cognos bidding process to be improper.

Patrick has said little about the Cognos controversy. After DiMasi was indicted in June 2009, the governor acknowledged that he had been questioned by the FBI, but would give no details.

However, the administration was aware several months before the contract was awarded that DiMasi wanted Cognos to get the business, according to several sources in government and the private sector.

In May 2007, another potential bidder said Morales told him he was too late. “The speaker has a significant interest in this contract,’’ the failed bidder quoted Morales as saying. He asked not to be identified because he still does business with the state.

The administration delayed awarding the contract for three months, after state bureaucrats raised concerns about the rushed bidding process and a Globe reporter asked administration officials if the contract was predestined for Cognos.

Despite the red flags, the Patrick administration eventually awarded the contract in August. At least one official has told investigators Patrick aides stepped in as state technology officials were collecting bids in May and put the process on hold so they could negotiate with DiMasi.

The official believed the governor’s office was seeking legislative support for an anticrime plan, unveiled by the governor on May 10. The measure, which provided $15 million for local safety programs and more police on the street, was later approved as part of a supplemental budget.

Cognos got its money at the end of August, just in time to record enormous profits. Sullivan discovered that, on the same day the state wired Cognos $13 million for the contract, Lally paid $500,000 to Vitale and $200,000 to McDonough.

Estes can be reached at; Murphy at