DiMasi: Guilty

June 15th, 2011 | by David Frank

After six weeks of trial and three days of deliberations, the jury in the public corruption trial of Salvatore F. DiMasi has convicted the former House speaker on seven of nine counts. Prosecutors had accused DiMasi of accepting illegal kickbacks in exchange for awarding lucrative state software contracts to a Burlington-based software company. The jury also found lobbyist Richard McDonough guilty, but acquitted accountant Richard Vitale of all charges.

For those keeping track at home, DiMasi was convicted of conspiracy, two counts of mail fraud, three counts of wire fraud and extortion. McDonough was found guilty of conspiracy, two counts of mail fraud and three counts of wire fraud.

The scene inside Judge Mark L. Wolf’s session was unlike any most of us have ever witnessed in a courtroom. As the crowd thinned out after the jury was released, the man who was once the most powerful legislator on Beacon Hill remained behind with his family. A clearly shaken, red-eyed DiMasi could do little other than console his sobbing wife and children.

Even though Vitale was cleared of all charges and told by Wolf that he was free to leave, the acquitted defendant remained in the audience along with his lawyer, Martin Weinberg, and listened as the judge and the remaining defendants addressed how the case would next proceed.

Weinberg and his client had a long exchange after the trial. There is no doubt Vitale got his money’s worth when he hired the veteran practitioner. Weinberg told Lawyers Weekly that the verdict was bittersweet. “On the one hand, I’m overwhelmed and happy for Richard Vitale,” he said. “But my thoughts are also with Sal DiMasi and Richard McDonough.” Weinberg is planning on taking a few days off. I would say he’s earned it.

Richard "Dickie" McDonough Convicted

When the case was recalled after the verdict, Wolf told everyone that “just because Mr. Weinberg isn’t here [anymore] doesn’t mean he was a better lawyer.” He told the audience that it was not his job to judge the quality of the lawyers before him, but he said he would be remiss if he did not do so. “This has been just what you hope for as a judge…It is a case involving matters of real consequence, supported by able lawyers on both sides.”

Even when Wolf issued such praise, he couldn’t resist taking one last shot at the prosecution. “The government has been impressive. Not perfect.”
The judge set sentencing for mid-August where it is expected that DiMasi and McDonough will receive lengthy prison terms. For what it’s worth, I haven’t talked to anyone who thinks the sentences will be anything less than five years. The number could go as high as eight or nine.

Because this case was the first honest services fraud case tried under Skilling v. U.S., where the court narrowed the scope of an honest services fraud to crimes involving bribes or kickbacks, I have talked to several lawyers who think DiMasi and McDonough have a decent chance of remaining free on bail pending appeal.

In the meantime, Wolf has already set some limitations on DiMasi’s liberty. He is not permitted to leave New England without permission of the court.
Outside the courthouse, DiMasi said he did nothing wrong and suggested his team had ample grounds for appeal. “I did not have the requisite intent,” he said. He added that the verdict had not yet sunk in. “I’m still in shock.” DiMasi talked about Skilling and said the ruling would be a major focus of his appellate efforts. The guy is still a lawyer, so he knows of what he speaks.

Despite the fact that the trial marked the first time a jury had ever been asked to decide an honest services fraud case under a landmark U.S. Supreme Court ruling, U.S. Attorney Carmen Ortiz told me she didn’t think DiMasi et al. would go up to the Supreme Court. She noted that the facts of this case were different. Really?

Judge Wolf left the bench to personally thank the jurors. He also cautioned them that members of the media likely would be calling. He told them that it is their decision whether they want to cooperate, but that there could be consequences. In the Gary Sampson murder trial, Wolf said, jurors who talked to the media became witnesses in post-conviction hearings.

Given those words of caution, what juror would want to speak to the media?

I know it is the least of his problems at this point, but I have a hard time imagining how DiMasi will keep his law license after this.

- David E. Frank