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DiMasi defense set to start rebuttal

Will cast his actions as politics as usual

Lawyers for Salvatore F. DiMasi are likely to argue that the former House speaker’s actions were simply politics as usual. Lawyers for Salvatore F. DiMasi are likely to argue that the former House speaker’s actions were simply politics as usual. (Josh Reynolds for The Boston Globe)
By Milton J. Valencia
Globe Staff / June 6, 2011

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Now it’s their turn to make their case.

Beginning today, lawyers for former Massachusetts House speaker Salvatore F. DiMasi and two associates will present their defense, hoping to convince a federal jury that, although the actions of DiMasi and his associates may be ugly, they were not illegal, just politics as usual.

“They want to show you may not like the way business is done on Beacon Hill, but this is the way business is done on Beacon Hill, and there’s no crime here,’’ said Steve Huggard, former chief of the public corruption unit in the US attorney’s office and now a white-collar-crime defense lawyer.

The list of potential defense witnesses includes lobbyists who know the process in the State House and ethicists who advised DiMasi about what he could and could not do in his role as speaker. Current House Speaker Robert DeLeo and Senate President Therese Murray may also be called to testify.

It remains uncertain whether DiMasi will take the stand, a move that Huggard and other legal analysts said could help him connect with jurors. But it also opens him up to potentially wither ing cross-examination.

“That’s the big issue left in the case,’’ Huggard said. “The downside is when you do this, the rest of the trial becomes secondary, and it comes down to a one-witness case. The jury believes you or they don’t, and there’s a lot of risk in that.’’

DiMasi, 65, was House speaker from 2004 until his resignation amid a growing scandal in January 2009.

He was indicted in June of that year with his financial adviser, Richard Vitale, and a lobbyist, Richard McDonough, both longtime friends, accused of using the power of the speaker’s office to help a Burlington software company called Cognos win two state contracts totaling $17.5 million. In turn, they allegedly received hundreds of thousands of dollars in kickbacks that were to be funneled to DiMasi.

A fourth defendant, former Cognos salesman Joseph P. Lally Jr., was also indicted as part of the scheme, but he pleaded guilty and testified for the prosecution.

The trial, entering its second month, has already cast attention on the political process in Massachusetts.

Defense lawyers are no longer working to manage public opinion about the defendants, who have been subjected to damaging, and at times embarrassing, testimony.

Instead, the lawyers are using case law and precedents to argue that prosecutors have failed to prove that their clients used DiMasi’s power to win him kickbacks and that he knew about and directed the scheme. The burden is on prosecutors to make that case.

Prosecutors allege that DiMasi illegally used his leverage as speaker to essentially extort the contract for Cognos, violating the requirement that public officials provide “honest services’’ rather than enrich themselves.

“It is clear they are battling in that courtroom,’’ said David Frank, a former prosecutor and writer for Massachusetts Lawyers Weekly, who has observed much of the case.

“Clearly, this is a high-stakes, high-profile trial, and the lawyers on both sides are trying to anticipate where the other side is going,’’ he said.

In opening statements and cross-examination during the prosecution’s case — which included 24 witnesses over 16 days of testimony — defense lawyers tried to make the trial a prosecution of Lally, the former Cognos salesman whose testimony placed DiMasi at the center of the scheme.

Lally said McDonough approached him in 2004 about ways to help financially support the speaker, who had lost a significant source of income from his law office.

In turn, Lally said, he arranged to put DiMasi’s former law associate on the Cognos payroll, knowing that money would be funneled to the speaker in the form of referral fees.

Lally also said he was told by Vitale that it would take $500,000 to lobby the speaker to win the second state contract, a $13 million deal, and that the money would ultimately be funneled to DiMasi after he retired from public service.

DiMasi, Lally testified, told him in 2006, “I’m only going to be speaker for so long, so it’s important we make as much hay as possible.’’

Defense lawyers have portrayed Lally as a fraud who inflated his ties to DiMasi, creating the false impression of a conspiracy.

They say Lally shaped his testimony for prosecutors in exchange for a shorter jail sentence.

Even if the defense undermines Lally’s credibility, DiMasi’s lawyers still have to address damaging testimony from others, including former DiMasi law associate Steven Topazio, who testified he was paid a $5,000 monthly retainer by Cognos in a contract that McDonough and Lally set up. Topazio said he regularly paid DiMasi $4,000 in referral fees, totaling $65,000, not knowing DiMasi was allegedly pushing for the Cognos contracts.

Another witness, Barbara Martin, a former employee of Vitale’s accounting firm, said she set up a private consulting company for Vitale that received money from Lally, around the time the first contract was approved.

A former Cognos salesman said the company drafted language for a bond bill that would pay for the $13 million contract so that Cognos was the only possible winner. That language was eventually passed by the Legislature.

Finally, members of Governor Deval Patrick’s administration — including the governor himself — testified that DiMasi lobbied heavily for them to sign the contract.

They indicated that the speaker made it clear that it would help settle what had been a rocky relationship between the speaker and the new administration.

Leslie A. Kirwan, a former Patrick Cabinet member, said she ultimately signed the contract and hoped “it would make the big guy happy.’’

Defense lawyers counter that DiMasi never mentioned the name Cognos directly, that he had only pushed for the type of software the company produced.

They urged US District Court Judge Mark L. Wolf to dismiss the charges on Friday, arguing that the case is based on inference and circumstantial evidence.

Wolf said he would rule after closing arguments.

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