DiMasi targets witness testimony

Leslie A. Kirwan said she would not have approved a $13 million state contract with a software company. Leslie A. Kirwan said she would not have approved a $13 million state contract with a software company.
By Milton J. Valencia
Globe Staff / May 27, 2011

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Lawyers for former House speaker Salvatore F. DiMasi and Richard Vitale, his financial adviser and longtime friend, have filed a midtrial motion urging US District Judge Mark L. Wolf to strike or have jurors disregard part of the testimony of a prosecution witness.

Leslie A. Kirwan, former secretary of the state’s Executive Office of Administration and Finance, testified Wednesday in the corruption trial of DiMasi, Vitale, and another associate of the former speaker. She said she would not have approved a $13 million state contract with a software company and would have sought legal advice if she had known, as prosecutors allege, that DiMasi was receiving money for pushing company interests.

The defense lawyers argued that Kirwan’s testimony was inadmissible because neither DiMasi nor Vitale was under any duty to disclose such information; they never had a chance to do so; and because the statement supported an invalidated legal theory that failure to disclose the information constituted honest services fraud, one of the charges in the case.

The lawyers argued that the US Supreme Court ruled in 2010, in an honest services case involving former Enron chief executive Jeffrey Skilling, that failure to disclose a conflict of interest should not support a conviction.

“The government’s questioning of Ms. Kirwan and her responses impermissibly invite the jury to resurrect the now-invalidated failure to disclose theory of honest services fraud and to convict the defendants of honest services fraud and/or conspiracy to commit honest services fraud based on a theory that the award of the contract to Cognos was achieved through nondisclosure by defendant DiMasi,’’ the lawyers argued in the five-page motion.

The lawyers also argued that the failure to disclose the payments should not constitute fraud, because “at no time did DiMasi advocate with [Kirwan] for the award of the contract to Cognos. Nor was DiMasi the decision-maker in the matter.’’

The lawyers also said that because Vitale officially received a $500,000 payment related to the deal after the contract was signed, he had no opportunity to alert Kirwan.

In a six-page response, prosecutors said DiMasi had a duty to report his interest once he pushed for the contract and that Kirwan’s testimony was relevant to the honest service charges.

“DiMasi owed a duty of honest services to the public, as well as to his fellow public officials, and he violated that duty by participating in the bribe and kickback scheme,’’ prosecutors said. “DiMasi’s failure to disclose any payments is not itself the criminal act; it is the inherently secret exchange of money in return for official acts that is criminal.’’

DiMasi, Vitale, and Richard McDonough, a lobbyist, are accused of using the power of the speaker’s office to win the contracts for Cognos in exchange for kickbacks. They have denied any wrongdoing.

A fourth codefendant, former Cognos salesman and vice president Joseph P. Lally Jr., has pleaded guilty and testified for the prosecution in exchange for a reduced jail sentence.

He said that DiMasi was at the center of the scheme to steer the contracts toward Cognos and to have money funneled to him through Vitale and McDonough.

Milton Valencia can be reached at