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Harvey A. Silverglate

Finneran’s only crime is careful diplomacy

By Harvey A. Silverglate
January 16, 2010

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IT’S TOO bad the child who observed the emperor had no clothes was not around to point out that former Massachusetts House Speaker Thomas Finneran did not commit perjury, for our judicial system might have been spared the grave error of disbarring an innocent man. Finneran’s mistaken decision, made under enormous pressure, to plead guilty in 2007 to a federal crime that he did not commit led almost inevitably to the revocation of his law license. Yet federal court transcripts demonstrate his conduct was a far cry from felonious.

Not all convictions, and not all disbarments, are created equal. Finneran’s fate says far more about what’s wrong with some federal criminal statutes than it does about the former speaker himself.

Recent statistics indicate that 95 percent of federal indictments end in a plea bargain. There are very few federal criminal trials these days, even though the number of people charged with federal crimes has increased by 17 percent in the past decade. Have we, as a society, suddenly become more criminal? No - instead, our notoriously vague federal criminal statutes have resulted in a surprisingly large number of innocent defendants pleading guilty.

Finneran was charged with federal obstruction of justice and perjury because he allegedly lied, in court testimony, about the extent of his involvement in a legislative redistricting plan that was being challenged as discriminatory.

During his testimony, Finneran did indeed minimize his role in redistricting. It would not have been politic for the speaker to testify that he, like speakers before and after him, exercised the role of benevolent (or sometimes not so benevolent) despot over House affairs. But even if he denied being a puppeteer, he described his influence in concrete terms: He acknowledged that his “recommendations” for House committee chairs were always approved by the members. He admitted to having hand-picked the chairman of the redistricting committee, Thomas Petrolati, and to involving his long-time confidant, Lawrence DiCara, in the process.

Finneran testified that he conveyed his approval of the plan to the committee via DiCara. The three-judge federal panel, unsatisfied with Finneran’s diplomacy, virtually invited federal prosecutors to indict the former speaker for lying about his role.

It is a huge stretch to consider his testimony materially misleading, much less perjurious. Perjury requires a clear lie. If Finneran’s carefully and diplomatically nuanced testimony is perjury, then the obstruction-of-justice statute can ensnare anyone who wields great power but has diplomatic reason to play it down. Any judge who does not understand this has been in the ivory tower for too long. Any prosecutor who does not understand this is either naïve or dangerous.

So why did Finneran plead guilty to a charge of obstruction of justice by means of perjury that he likely could have beaten at trial? If Finneran went to trial and lost, the Feds would have recommended a prison sentence. Federal judges almost always follow such recommendations, especially when dealing with high-profile public officials who stand convicted of a serious charge. Finneran pleaded guilty for the same reason many other federal defendants plead guilty: He was made an offer he could not refuse.

Never mind that 12 ordinary citizens likely would have recognized that his testimony was not perjurious, but simply tailored to the speaker’s desire not to insult House members gratuitously. Many federal criminal statutes are infamously vague and malleable. If a bit of diplomacy exercised during the course of essentially accurate testimony is federal perjury, then we have given the Department of Justice a dangerous power over political leaders, not to mention the rest of us.

Finneran’s guilty plea and disbarment are blemishes upon our state and federal judicial systems. The SJC, for its part, took Finneran’s guilty plea as proof of perjury, naively unaware that it was coerced, rather than review the redistricting trial transcript to make an independent judgment.

This was not the proudest moment for the judiciary or the Department of Justice. Because of the naivete of and mindless cheerleading by the news media and the public, more such moments will surely come, since vague federal statutes remain a trap for even the honest but unwary citizen.

Harvey A. Silverglate, a criminal defense and civil liberties lawyer, is the author of “Three Felonies a Day: How the Feds Target the Innocent.’’

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