DA's office is sued over prosecution of drug case

Defendant alleges political interference

A Winthrop man and his lawyer alleged yesterday that the Suffolk district attorney's office surrendered to political pressure and decided against prosecuting the brother of an East Boston state representative on drug charges.

In interviews and in court papers, Pasquale Capogreco and lawyer Bernard Grossberg contend that the influence of Representative Carlo Basile led a judge to drop drug conspiracy charges against Anthony Basile in 2007 and has since blocked prosecutors from indicting his brother.

"His brother's a state rep," said Capogreco, adding that Carlo Basile "in the political game, and he's got political pull over there."

Capogreco has been indicted on charges of drug trafficking after allegedly trying to sell oxycodone to Anthony Basile. "How did I get an indictment when we were both in the car together?" Capogreco said. "All the blame is going on me, and he's home free with his family."

Grossberg, who has persuaded Judge Carol S. Ball of Suffolk Superior Court to look into the misconduct allegations against the office of District Attorney Daniel F. Conley, said that charges against Capogreco should now be dismissed because of the handling of the case against Anthony Basile.

"It's just unconscionable that the district attorney's office doesn't either indict both or dismiss against both," Grossberg said. "It's certainly not equal protection under the law. . . . It's clear, unequivocal prosecutorial misconduct."

But in separate interviews yesterday, Representative Basile and Conley's top aide, First Assistant District Attorney Joshua Wall, denounced the allegations as false claims by a desperate man.

"I never called any prosecutors, any police, anybody, for preference on my brother," said Carlo Basile, who won a special election Sept. 25 and took his first oath of office Nov. 1.

Wall said the evidence shows that Anthony Basile got into Capogreco's car on Oct. 25, 2007, with $7,400 in cash, intent on buying prescription painkillers. But because Basile never consummated the deal before Boston police pulled over the car, there is no legal basis for prosecuting him for drug possession or drug conspiracy.

Wall also denied that political influence was involved.

"Neither the police investigation nor the grand jury investigation provided any evidence that Mr. Basile possessed the drugs," Wall said. "Representative Basile has reached out to no one in this office. He didn't send an e-mail. He didn't leave a message. He didn't have any communication. Same answer for his surrogates."

Anthony Basile and his lawyer, Sean Donahue, could not be reached for comment yesterday.

At the heart of the influence allegations is a revision Boston police made to the original arrest report and the way former East Boston District Court Judge Paul Mahoney and Clerk Magistrate Joseph R. Faretra reacted in October 2007 when Capogreco and Anthony Basile were arrested and appeared in court.

In an earlier ruling in Suffolk Superior Court, Ball wrote that the case appeared to get unusual treatment in the district court, including Mahoney's decision to essentially dismiss drug conspiracy charges against Anthony Basile one day after his arrest.

"The Commonwealth concedes that since Basile faced a felony charge, the district court was without authority to do this," Ball wrote. "Of note is that Basile is the brother of a Massachusetts state representative."

The judge also pointed out that Boston police identified Basile as the passenger or "pass" and first wrote that "pass removed a plastic bag containing 100 (80 mg) tablets of OxyContin from right front pocket." But this Febuary, an updated version blamed a typographical error and linked all of the drugs to Capogreco alone.

Wall, in the interview, said that when read in its entirety the original sentence clearly identifies only Capogreco as the person handing drugs to police.

In her ruling, Ball applauded prosecutors for being precise, but said she was skeptical of prosecutors' assertions they could not charge Basile with drug violations.

Mahoney did not return a telephone call seeking comment.

Faretra, the clerk magistrate, said in a phone interview that he handled the case ethically and was not influenced by the state representative, whom he acknowledged knowing.

"The matter went before the judge," Faretra said. "I can't tell a judge what to do."

Faretra said he does not recall meeting with Anthony Basile on Oct. 26, 2007, as Capogreco asserts in a sworn affidavit.

Capogreco, meanwhile, is free on bail but faces 10 years in prison for what he said was his first arrest. "They are making me out to look like a Colombian drug lord here," he said.

John Ellement can be reached at ellement@globe.com.