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DiMasi jury reexamines its instructions

Judge is asked a 2d time to outline law

By Milton J. Valencia
Globe Staff / June 15, 2011

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Jurors deliberating for their first full day in the public corruption trial of former House speaker Salvatore F. DiMasi asked a federal judge to repeat his instructions on how they should decide whether DiMasi knowingly helped a software company win state contracts in exchange for personal gain.

The panel of five men and seven women, which deliberated for five hours before breaking for the day, zeroed in on US District Chief Judge Mark L. Wolf’s instructions on honest services fraud, the core of the case against DiMasi and two associates.

The honest-services fraud allegations essentially state that DiMasi had a duty as speaker to provide honest services to taxpayers, but that he secretly exploited that role for personal benefit.

One legal analyst said the jury’s request, which was granted, shows it is looking closely at the instructions on the law as it deliberates.

“This is the heart of the case, and the jury wants to make sure they have the law exactly right on the critical issue of honest services fraud,’’ said Sarah P. Kelly, a lawyer with Nutter, McClennen & Fish of Boston who specializes in white-collar crime.

She cautioned against reading too much into the request, but said the jury seems to be taking its time on the instructions, just as lawyers had worked hard to craft them.

“The jury’s trying to figure out the critical issue, what is honest services fraud, and what exactly are the elements of the crime,’’ Kelly said.

DiMasi and codefendants Richard Vitale and Richard McDonough face a total of eight counts of conspiracy to violate honest services fraud, honest services by mail fraud and by wire fraud. DiMasi is also charged with extortion.

They are accused of using DiMasi’s power when he was House speaker to help a Burlington software company win two contracts totaling $17.5 million in exchange for hundreds of thousands of dollars in kickbacks.

Prosecutors say DiMasi flexed his political power in exchange for $65,000 that Cognos funneled through a former law associate. Prosecutors also say that DiMasi planned to benefit from $600,000 paid to Vitale by a former Cognos salesman.

The salesman, Joseph P. Lally Jr., once was a codefendant in the case. But he pleaded guilty and testified about the alleged scheme. Defense attorneys called him a liar who exaggerated his ties to DiMasi and who was shaping his testimony for prosecutors in exchange for a reduced prison sentence.

The defendants have said they did nothing wrong.

Defense attorneys argue that prosecutors have failed to prove the underlying accusations in the case: that DiMasi knowingly took part in the scheme and supported Cognos in exchange for his benefit.

The strategy is based in large part on a 2010 US Supreme Court ruling that raised the burden of proof in honest services cases. That ruling, in the case of former Enron chief executive Jeffrey Skilling, stated that a failure to disclose a conflict of interest does not constitute a crime and that prosecutors must prove an official took action directly in exchange for a bribe.

The ruling, changing the scope of what had long constituted honest services fraud, was made after the charges were filed in DiMasi’s case.

Some legal analysts say the 2010 ruling should not influence the DiMasi case because the former speaker had already been accused of taking bribes for official action.

According to defense lawyers, this is the first full honest services case to go to trial since the Skilling ruling, and lawyers have been battling over jury instructions to adhere to the decision. Wolf has indicated that appellate courts have yet to address legal questions resulting from the Skilling ruling. But Kelly said that Wolf’s instructions to jurors seem to have addressed the spirit of the Supreme Court’s decision.

“That’s what Judge Wolf told the jury, that they have to find an actual quid pro quo, an exchange of money or other good for the action,’’ she said.

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