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Lawyers scorch, defend DiMasi

Closing arguments in corruption case

Salvatore DiMasi as he left the federal courthouse yesterday after closing arguments in his corruption trial. Salvatore DiMasi as he left the federal courthouse yesterday after closing arguments in his corruption trial. (Matthew J. Lee/Globe Staff)
By Milton J. Valencia
Globe Staff / June 11, 2011

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Prosecutors asked a federal court jury yesterday to find that former House speaker Salvatore F. DiMasi and two associates leveraged one of the most powerful positions in Massachusetts to help a Burlington software company win multimillion-dollar state contracts in exchange for kickbacks.

“Use your common sense and look at the entire picture,’’ Anthony Fuller, an assistant US attorney, said in closing arguments in DiMasi’s corruption trial. “When a public official takes action in return for payments to his friends, that is not just a breach of duty; that’s a federal crime.’’

Fuller added: “Those are called kickbacks, ladies and gentlemen. Those things are not in dispute. The money was paid.’’

But attorneys for DiMasi and his codefendants, Richard Vitale and Richard McDonough, told jurors that prosecutors had failed to prove that the three knowingly concocted a scheme to benefit DiMasi in exchange for him using his power as speaker to help secure the state contract.

“They must convince you that Salvatore DiMasi is guilty, not could be, may be, might be,’’ said William Cintolo, an attorney for DiMasi. “. . . We don’t work on rumors in this court. We work on hard facts, hard evidence that you can look at, touch, see, and appreciate.

“That’s what this case is about, quid pro quo,’’ Cintolo said. “You didn’t see it, because it didn’t exist.’’

The closing statements, which lasted more than six hours, highlighted the central themes in the six-week case, and they came with all the theatrics and intensity expected for such a high-profile trial.

Over the weekend, US District Chief Judge Mark L. Wolf plans to finalize his instructions to the jury on how to interpret the laws DiMasi is accused of breaking. Those instructions could take close to two hours Monday morning, and the jury could start deliberating the case by that afternoon.

DiMasi and two of his longtime friends — Vitalie, his financial adviser, and McDonough, a lobbyist — are accused of manipulating the legislative process to help the Cognos software company win two contracts totaling $17.5 million in exchange for hundreds of thousands of dollars in secret payments.

DiMasi allegedly received $65,000 that was funneled through his former law associate, Steven Topazio. Topazio testified during the trial that he paid DiMasi what he thought were referral fees, though he said he did not know the speaker had an alleged connection to Cognos.

Prosecutors also say former Cognos salesman and vice president Joseph P. Lally Jr. paid $600,000 to Vitale and $300,000 to McDonough for two contracts because Lally believed the money would persuade DiMasi to make sure Cognos got the deals.

Lally, a codefendant, pleaded guilty and testified for prosecutors last month that DiMasi was at the center of the alleged scheme. Defense attorneys called Lally a liar and fraud who shaped his testimony for prosecutors in exchange for a sharply reduced jail sentence.

The defense attorneys say that their clients did nothing wrong and that Lally exaggerated his ties to DiMasi, creating a false theory of the conspiracy.

Methodically following a timeline that began when DiMasi became speaker in 2004, Fuller sought to paint for jurors a picture of the alleged scheme by connecting the testimony of the prosecution’s 24 witnesses.

He noted how Topazio said he had been approached in 2004 by McDonough and Lally and was offered a contract to work as a lawyer for Cognos, although he is a criminal lawyer with little experience in corporate law.

DiMasi told Topazio, “It’s about time we get business like this,’’ Fuller noted.

“Topazio’s only function was to write checks for Sal DiMasi,’’ the prosecutor said.

Fuller argued that testimony showed that DiMasi arranged for $4.5 million in state funding for education data software in 2006, even as administration officials were trying to trim funding for software. Cognos ultimately won a $4.5 million contract.

Fuller also argued that the three defendants and Lally worked behind the scenes to draft legislative language approving the purchase of performance management software in a way to ensure that Cognos won the contract. Then, the prosecutor said, the speaker persuaded officials in Governor Deval Patrick’s administration to approve the funding, knowing Cognos would ultimately win the deal.

DiMasi even met with Patrick to tell him the software funding was important to him and that it could help resolve differences between them, Fuller said.

“It shows you the speaker had power outside the legislative process; he had power even within the administration, in the governor’s office,’’ Fuller told the jury.

Cognos ultimately won a $13 million contract with the state in August 2007.

Fuller told jurors that DiMasi had accumulated big debts after becoming speaker, a motive for him to earn money where he could. “You know from the evidence, his finances were difficult, to say the least,’’ Fuller said.

But defense lawyers, relying on the language of the charges in the indictment, say prosecutors have failed to prove their case.

Vitale attorney Martin Weinberg said prosecutors have not shown DiMasi concocted the scheme, that he benefited from any payments, or that he used his office in exchange for the payments. In Vitale’s case, Weinberg said, the accountant recorded any payments he received or made, showing no sense of guilt in his dealings with Lally.

“The government has offered you no conversations in which Mr. DiMasi said, ‘Pay my friend Richard Vitale,’ ’’ Weinberg said. “There are no statements from Mr. Lally, even, that Mr. Vitale made him any promise that ‘if you pay me money, I will influence legislation’.’’

Weinberg added, “Not proven is not guilty.’’

The closing statements were intense on all sides, but at times they bordered on the comic. Weinberg quoted literary figures, including Shakespeare. Attorney Thomas Drechsler, arguing that his client McDonough was a legitimate lobbyist for Cognos, paced theatrically back and forth in front of the jury, portraying Lally and what he called Lally’s attempts to shape his testimony for prosecutors.

“How can I please the US attorney; how can I provide substantial assistance,’’ Drechsler said, in a mocking rendition of Lally’s role. “They own him; he’s their witness. He’s a liar. The government’s witness is a liar.’’

Weinberg also introduced evidence showing Lally lied about conversations with McDonough, saying they never occurred.

But assistant US attorney S. Theodore Merritt reminded jurors that Lally was once a defendant in the case, that all four of them were charged long before Lally agreed to cooperate, and that it was the defendants who chose to conspire with Lally.

“This isn’t a comedy show,’’ Merritt said. “This is about corruption by the highest elected official in this Commonwealth and his two cronies.’’

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

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