Lawyer to probe Big Dig accident

Faced with reams of ambiguous evidence and dozens of potential suspects in last summer's Big Dig tunnel ceiling collapse, Attorney General Martha Coakley turned to a legal heavyweight yesterday to help her sort out whether anyone should face criminal charges in the accident that killed a Jamaica Plain woman.

Her new special prosecutor, Paul F. Ware Jr., chairman of one of the biggest private litigation teams in the country, will have four months to determine if flaws in the design and construction of the Interstate 90 connector tunnel ceiling were so serious that the death of Milena Del Valle in its cave-in should be considered manslaughter.

"I am committed to getting to the bottom of this," Coakley said at a press conference to introduce Ware, who will be paid $525 an hour for his services, a discount from his usual $775 hourly fee.

"I think it is extremely important for this project and for the Commonwealth . . . to be able to tell the public what we determined did happen and who is responsible for it," Coakley said.

Ware, a senior partner in the Boston law firm of Goodwin Procter, has long been a private lawyer government officials turn to on especially thorny cases.

In 1992, the special prosecutor in the Iran-Contra scandal tapped him to prosecute an associate of Lieutenant Colonel Oliver North. in 2002, the top judge in Massachusetts asked him to lead the cross-examination of Judge Maria Lopez in her highly publicized misconduct case.

As in those previous instances, Ware did not hesitate to say yes.

"We all know this investigation is informed by a tragedy," said Ware, 63. "As a matter of professional interest and challenge, it is hard to imagine a better example of both the opportunity and the difficulty" of complex legal issues. "These aren't the kinds of matters or cases that a government agency is set up to do very well on its own."

Legal observers said the naming of Ware gives Coakley political cover after she publicly raised doubts that any individuals would go to jail for their mistakes in building the ceiling.

Her predecessor, Thomas F. Reilly, flatly stated in November that the accident was a crime, but Coakley has said it would be extremely difficult to prosecute individuals because the standard of proof for a conviction is so high, requiring that people showed "wanton and reckless" disregard for safety.

Some interpreted Coakley's remarks as downplaying the investigation, but she said she was trying to remain impartial.

Observers praised Coakley's choice of Ware, a former assistant US attorney in Boston and a veteran of complex, high-profile criminal cases.

As chairman of the 350-attorney litigation department at Goodwin Procter, Ware has been involved in a stream of controversial cases, from defending Harvard University against fraud charges for work advising the Russian government to defending Massport in lawsuits related to buildings and other property destroyed in the 9/11 terrorist attacks.

"He is a very well respected, very good lawyer," said Jeffrey A. Denner, one of the lawyers representing the family of Del Valle. "I am gratified, and the family is gratified that she [Coakley] is taking the case this seriously."

"What most people will tell you is that Paul is one of the best cross-examiners they've ever seen," said Ken Parsigian, a partner at Goodwin Procter who has worked with Ware more than 20 years. "It means you are a great listener, because cross examination is about turning people back on themselves. . . . You have to be an incredible student of human nature."

He said Ware's insight and his ability to manage a large group of lawyers are well suited to the Big Dig case, in which dozens of companies and individuals involved in the project say the ceiling collapse was someone else's fault.

Reilly, now a lawyer in the Boston office of Greenberg Traurig LLP, declined to comment on Coakley's announcement.

Reilly filed a civil lawsuit to recover financial damages against many of the firms that designed and built the connector tunnel ceiling, including Bechtel/Parsons Brinckerhoff, the joint venture that managed the $14.6 billion Big Dig highway project. Both Reilly and Coakley said they would prefer to prosecute criminal charges, if any, before going forward with the civil lawsuit.

But the criminal case is daunting. Construction documents show that designers repeatedly reduced the margin of safety in the ceiling and that workers made mistakes installing the ceiling bolts, which were attached with epoxy. However, criminal convictions in construction cases are rare, largely because prosecutors must prove that participants knew they were creating something dangerous and did nothing to prevent it.

Coakley said she started discussing how to resolve the criminal investigation with Reilly, her former mentor, after last fall's election, as Reilly's investigators methodically combed through more than 400,000 pages of documents. Reilly chose to use his own staff, but Coakley said she told Reilly she was considering bringing in an outside lawyer experienced in managing complex criminal cases.

"Paul was clearly someone who came to the top of the list" of potential special prosecutors, she said.

Lawrence E. Walsh, the special prosecutor in the Iran-Contra scandal, had the same impulse in 1992, when he asked Ware to prosecute Duane Clarridge, a former CIA official and associate of North accused of perjury in connection with a secret shipment of missiles to Iran. Ware prepared the case, but President George H.W. Bush pardoned Clarridge.

In 2002, Chief Justice Margaret Marshall of the Supreme Judicial Court tapped Ware to prosecute Judge Lopez before the Commission on Judicial Conduct on charges stemming from her videotaped berating of a prosecutor during sentencing of a child molester. Though friends cautioned Ware that it might be unwise to lead the prosecution of a sitting judge, he took the case. A judge recommended a six-month suspension, but Lopez resigned rather than accept the discipline.

Yesterday, Ware was sworn in to his new job, which he will balance with his duties at Goodwin Procter at least until a decision is made whether to go forward with prosecutions. Ware will be paid by the hour under his contract with Coakley, with a cap of $378,000 in total payments through June 30, according to Coakley spokeswoman Emily LaGrassa.

Ware will present evidence to a special grand jury and, if Coakley decides to ask for a criminal indictment of individuals or companies involved in the ceiling collapse, he said he would stay on and potentially tap others at Goodwin Procter for help in prosecuting the case. However, he said, "we want to use existing state resources if at all possible because of cost reasons."

Coakley praised her special prosecutor as "one of the brightest and most talented attorneys in the Commonwealth," and said she never meant to cast doubt on the criminal investigation.

Scott Allen can be reached at allen@globe.com. Mac Daniel can be reached at mdaniel@globe.com.