Patrick might testify at corruption trial of DiMasi

On prosecutors’ list of witnesses

By Milton J. Valencia
Globe Staff / April 21, 2011

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The list of witnesses who could testify at the corruption trial of Salvatore F. DiMasi, the former Massachusetts House speaker, includes a who’s who in state government, from former heads of state agencies to a top aide to the current House speaker, all the way to the top: Governor Deval Patrick also may be called to take the stand.

It would be a rare appearance of the state’s chief executive at a criminal trial. A sitting governor has not been called to testify in a criminal case since 1995, when William F. Weld appeared on the stand in the influence-peddling trial of former state Senator Henri Rauschenbach.

Prosecutors, who put Patrick on the list, may want to question him and his aides about whether DiMasi lobbied the administration on behalf of Cognos, a Burlington software company that was awarded a $13.3 million contract by the administration in August 2007.

The contract, as well as a separate contract awarded to the state Department of Education, is at the center of an extortion trial against DiMasi and two codefendants, who are accused of setting up a scheme on behalf of Cognos in exchange for tens of thousands of dollars in kickbacks. DiMasi received $65,000 for pushing for the contract, according to prosecutors.

Lawyers for DiMasi and his codefendants said any payments made were legal. DiMasi resigned in January 2009, after months of state and federal investigations into the Cognos contracts, triggered by a series of Globe stories. He was indicted in June of that year, the third consecutive House speaker to face criminal charges.

With top state officials such as Leslie Kirwanm former head of administration and finance, and David Driscoll, former head of the Department of Education, on the witness list, the trial could provide a clearer picture of the role members of the executive branch had in awarding the contract.

Patrick’s office reiterated yesterday, that “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,’’ the statement said.

House Speaker Robert A. DeLeo issued a statement yesterday saying that his chief of staff, James Eisenberg, was on the witness list “to authenticate certain House documents and to provide background on the legislative process.’’

David Simas, a former top Patrick aide now working in the Obama administration, was also included on the list.

The release of the witness list yesterday comes as lawyers are making final preparations as the trial nears. Jury selection is slated to begin Tuesday.

Over the last several days and continuing today and tomorrow, US District Court Chief Judge Mark Wolf has been holding hearings and settling last-minute requests over how and whether certain evidence should be introduced in the trial, which could last close to two months.

On Tuesday, Wolf rejected defense lawyers’ request to exclude the testimony of a key prosecution witness: Joseph Lally, a former salesman for Cognos who was also charged in the scheme. Lally agreed to cooperate with authorities and testify against his codefendants in exchange for a sharp reduction in his jail sentence.

But Wolf indicated yesterday that he was considering issues that could favor the defendants in the trial.

Though Wolf did not commit to final decisions, the judge said he was inclined, for instance, to let DiMasi’s lawyers question lobbying experts who they say gave him advice on what work he could perform as a lawyer outside his role as House speaker. Also, the judge may let the defense lawyers introduce three witnesses who would testify about the general practices of lobbying in the state.

Wolf said yesterday that jurors ought to see what constitutes lawful lobbying in Massachusetts, noting that they may have negative perceptions of the practice.

“Some lawful lobbying may seem unattractive to some people,’’ the judge said.

In addition, Wolf said he may exclude evidence prosecutors had planned to introduce showing that codefendant Richard D. Vitale tried to delete e-mails and hide from his private accounting firm the $600,000 he received from Cognos, in violation of the reporting agreement he had with the firm.

Prosecutors alleged the acts constituted signs of guilt by Vitale, but Wolf said prosecutors could not prove it was guilt in relation to the Cognos deal. Vitale had been embroiled in another controversy involving his alleged illegal lobbying on behalf of ticket brokers.

Also yesterday, Wolf said he was inclined to rule on behalf of defense lawyers who want to introduce evidence showing the merits of the Cognos software. Prosecutors opposed the request, saying they are not challenging the usefulness of the software.

Attorney Thomas Drechsler, representing codefendant Richard W. McDonough, argued yesterday that the evidence would show that his client was lobbying on behalf of a legitimate company, not a cheap product that wasted taxpayer money.

“My client lobbied for this entity,’’ Drechsler said. “This was a real product, and it wasn’t a phony pie-in-the-sky idea. [The software] has been used, and has worked.’’

Milton J. Valencia can be reached at