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DiMasi accountant to enter plea

By Andrea Estes
Globe Staff / October 7, 2011

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Richard Vitale, the accountant who was acquitted of all charges in the federal corruption case against his friend, former House Speaker Salvatore F. DiMasi, will plead to three pending state charges against him today without having to admit guilt, according to a person briefed on the case.

Vitale will offer an unusual Alford plea, which will allow him to maintain his innocence while conceding that if the case went to trial prosecutors would probably convict him.

The plea is likely to be accepted by the judge, Superior Court Judge Carol Ball, who does not need prosecutors’ approval. Attorney General Martha Coakley’s office has argued for months that Vitale should be allowed to take a plea and avoid trial only if he admits that he violated campaign and lobbying laws.

According to defense lawyers and prosecutors, Alford pleas are rarely allowed by judges because there is no admission of guilt. The centerpiece of most pleas is the defendant’s acceptance of responsibility, they said. Ball, according to a Boston defense lawyer who knows her well, is one of the few local judges who will accept such pleas.

Vitale, who was also DiMasi’s longtime financial adviser and campaign treasurer, is accused of secretly lobbying DiMasi and other legislators on behalf of the Massachusetts Association of Ticket Brokers. The group paid Vitale $60,000 to push 2007 legislation that would have lifted the state’s $2 limit on ticket surcharges.

Vitale, and his consulting firm WN Advisors, were charged with failing to register as lobbyists and making political donations beyond the $200 limit for lobbyists.

In addition, Vitale was accused of breaking another section of the lobbying law by signing a contract with the ticket brokers that included a success fee, a bonus that would have been paid only if the legislation the group sought had been signed into law. Success fees are illegal in Massachusetts.

Vitale has argued he was a consultant, not a lobbyist, and did not need to register.

Since the case will not go to trial, many of the details will never be made public, including the ways Vitale sought to influence DiMasi and other key lawmakers on Beacon Hill. Prosecutors had attempted to file statements of their case, but were rebuffed by different Suffolk Superior Court judges.

Last month, Vitale’s lawyer, Martin Weinberg, said his client wanted to resolve the case. But the plea was delayed while the defense and prosecution tried unsuccessfully to reach agreement.

For several weeks, no hearings were scheduled. That ended Monday, when Ball, who has been criticized by prosecutors for lenient sentencing, began sitting in Suffolk Superior Court. On Monday, the change of plea was set for this afternoon.

Neither prosecutors nor Weinberg returned phone calls requesting comment.

Through a court spokeswoman, Ball said she was assigned the case only because she is sitting in the court’s first session, where many pleas are heard.

Ball has donated to DiMasi’s political campaign, but said she had no conflict in this case.

“Sal DiMasi has never been a defendant in a case in Suffolk Superior Court,’’ court spokeswoman Joan Kenney wrote in an e-mail.

In each of the three years before she became a judge in 1996, Ball made a political contribution to DiMasi. Judges are barred from political involvement, and the donations stopped after she became a judge.

At today’s hearing, Vitale is also expected to face tens of thousands of dollars in fines. He would have faced maximum penalities of two years in jail and fines of up to $2,000 for the campaign violations, as well as up to $30,000 in fines for the lobbying violations.

Prosecutors also want Vitale to pay back the $60,000 he received from the ticket brokers, but according to the source who was briefed on the proposed resolution of the case, Vitale has not agreed to do so.

Vitale was indicted by a state grand jury in December 2008, six months before DiMasi, Vitale, and two others were charged by a federal grand jury with conspiring to steer $17.5 million in state contracts to the software firm Cognos in exchange for hundreds of thousands of dollars in cash. The state case was put on hold until the federal charges were resolved.

Vitale, who received $600,000 indirectly from Cognos, was acquitted of the federal charges. DiMasi was convicted and sentenced to eight years in federal prison. Another codefendant, Cognos lobbyist and DiMasi friend Richard McDonough, was sentenced to seven years in prison. Both have been ordered to start serving their sentences next month.

A third codefendant, former Cognos vice president Joseph P. Lally, agreed to testify against the other three in exchange for a reduced sentence. Earlier this week, prosecutors said they would recommend 28 months, while Lally’s lawyer is seeking a sentence of a year and a day, followed by six months’ home confinement. Lally will be scheduled Oct. 18.

After Vitale was indicted, the Legislature passed new lobbying laws with tougher penalties.

If he had been charged under the new laws, he would have faced much higher potential fines, up to $60,000. In addition, he would have faced a possible five-year prison term.

In late 2009, a judge shed some light on the case in a ruling denying a motion to dismiss filed by Vitale. Judge Frank Gaziano wrote there was ample evidence that Vitale intentionally kept his lobbying a secret.

Gaziano said prosecutors painted “the portrait of a wealthy, well-educated, politically connected individual with access to legal counsel, with whom he consulted prior to entering into a contract with the Massachusetts Association of Ticket Brokers.

The defendant argues that a person of ordinary intelligence standing in his shoes could not have known he was required to register. The defendant’s argument is unpersuasive.’’

He also described e-mail exchanges and conversations among Vitale and lawmakers including House Speaker Pro Tempore Thomas Petrolati.

Andrea Estes can be reached at estes@globe.com.