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Many facts in play for sentencing of DiMasi

Co-workers, kin seeking leniency

By Milton J. Valencia
Globe Staff / September 7, 2011

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They described him as the man they knew before all this began, and the man they still identify with. Family members, friends, and associates of Salvatore F. DiMasi have asked a federal judge to show mercy when he sentences the former House speaker on corruption charges tomorrow, saying his positive work in public office for three decades should not be tainted by his conviction.

“Mr. DiMasi is not a perfect human being, but he is one who has made a tremendous difference in the lives of many,’’ said his former chief of staff, Maryann Calia, one of dozens of supporters who wrote to US District Chief Judge Mark L. Wolf.

DiMasi’s stepdaughter, Ashley Marchal, added, “Something that was such a minuscule aspect in his career has been made to publicly define him. All the good this man has done for the public is overshadowed by the charges and this trial.’’

But prosecutors say DiMasi should receive no leniency. Arguing that he violated the public’s trust in the worst of ways by accepting bribes to flex his political power, prosecutors clearly tried to make a statement as they proposed a lengthy sentence - 12 years and seven months - for the 66-year-old career politician, according to court records and legal analysts.

In sentencing DiMasi, Wolf is hearing from prosecutors, as well as lawyers for the former speaker who argue that three years in prison would be sufficient. The judge must first determine how DiMasi’s case falls under sentencing guidelines, and then consider mitigating or extenuating factors, such as his career in public service and the seriousness of his crimes.

Legal analysts said the judge will have to find a proper balance between recognizing DiMasi’s career as a legislator and holding him accountable for his eight-count conviction of leveraging his power to help a Burlington software company win state contracts, in exchange for financial kickbacks.

“I think there’s a lot of room for Judge Wolf to assess the facts, assess the crimes, assess the defendant, and decide what’s appropriate,’’ said Stephen G. Huggard, a former chief of the public corruption and special prosecutions unit in the US attorney’s office, who now works as a criminal defense lawyer.

“But no matter which way he rules, this is not going to be a slap on the wrist,’’ Huggard said.

DiMasi was convicted by a federal jury in June of conspiring with several associates to help software company Cognos win two contracts totaling $17.5 million in exchange for secret payments to him and his associates. The company won the contracts in 2006 and 2007. DiMasi resigned in January 2009, after a series of Globe stories exposed the deals.

Richard McDonough, DiMasi’s longtime friend and a lobbyist for Cognos, was also convicted. He, too, will be sentenced tomorrow, and prosecutors argue he should serve 10 years in jail. His lawyers say he should serve no more than two years.

DiMasi’s financial adviser, Richard Vitale, was acquitted of all charges. A fourth codefendant, Cognos salesman Joseph P. Lally Jr., pleaded guilty and cooperated with authorities by testifying about the conspiracy. He is slated to be sentenced in October, and prosecutors may recommend he serve two to three years.

If Wolf agrees with the recommendation by the government that DiMasi serve at least 12 years and seven months in prison, it would be the most severe federal sentence handed out in a political corruption case in Massachusetts, exceeding mandatory sentences for crimes such as drug distribution and gun possession.

Legal analysts say DiMasi’s own acknowledgment that a three-year sentence “is suitable’’ underscores a tougher climate in Massachusetts in which the public, and the judiciary, seek to hold politicians more accountable.

DiMasi’s two predecessors as speaker, Thomas M. Finneran and Charles F. Flaherty, were convicted of crimes after pleading guilty to federal charges, but both escaped prison sentences. Finneran was convicted of obstruction of justice and Flaherty of tax evasion.

More recently, former state senator Dianne Wilkerson and Boston City Councilor Chuck Turner were sentenced to at least three years in prison after they were convicted in federal court of taking bribes.

One question is whether Wolf will stay the sentences of DiMasi and McDonough and allow them to remain free pending an appeal, which they have already indicated they will file.

Defense lawyers argue that a 2010 US Supreme Court decision in the case of former Enron chief executive officer Jeffrey Skilling narrowed the scope of evidence allowed in the type of bribery charges brought against DiMasi, and that it is an issue they will raise in appeal, among others. They say that DiMasi and McDonough should be allowed to remain free while those issues are raised in the appellate courts.

But prosecutors argue, in court documents filed as recently as Friday, that Wolf has already decided on the issues to be raised on appeal, and appellate courts have agreed in separate cases, effectively weakening the the defense arguments.

Prosecutors contend DiMasi should immediately begin serving his sentence, saying he has “neither accepted responsibility nor come close to admitting that his conduct was even illegal.’’

The decision is up to Wolf, and district courts and appellate courts have often differed on such cases, legal analysts said.

What remains clear is that DiMasi continues to have support from friends and former colleagues, who in their letters to the judge pointed out DiMasi’s work as a legislator for 30 years on behalf of people with mental illness, his passionate opposition to gambling, his support for same-sex rights, and his work on health care reform. Letter writers include community activists, lawyers, and state lawmakers.

Family members speak of growing up poor, and how DiMasi supported others while he worked his way into law school. Former state Senate president Robert Travaglini said he and DiMasi “worked together on some of the most significant issues of our time,’’ including same-sex marriage and stem cell research.

DiMasi’s wife, Debbie, poignantly tells of one of her proudest moments, as her husband supported her in her struggle with breast cancer. Her plastic surgeon, she said, examined her and then turned to DiMasi.

“Let me shake your hand,’’ he reportedly said. “Because of your passage of stem cell research [legislation], the barbaric operation that your wife is about to have will soon be obsolete.’’

Milton J. Valencia can be reached at MValencia@globe.com. Follow him on Twitter@MiltonValencia.

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