BOSTON — Testimony has ended in the federal corruption trial of former House Speaker Salvatore DiMasi and his two co-defendants. But the defense and prosecution are now battling over how Judge Mark Wolf should instruct the jury before they begin their deliberations.
Judges’ instructions on the law are always significant, but perhaps more so in this trial than any in recent memory.
Far from being charged straight up with bribery or extortion, DiMasi and his co-defendants are charged at heart with scheming to “defraud and deprive the Commonwealth of Massachusetts and its citizens of their intangible right to honest services of Salvatore F. DiMasi.”
If that language seems vague, it has its attraction for prosecutors, said David Frank of Massachusetts Lawyers Weekly.
“The vagueness is what sort of played into the prosecution’s interest in using it,” Frank said.
“Theft of honest services,” as the crime is called, is controversial. The law has been flagged all the way up to the Supreme Court, which agreed with defense attorneys that the statute was too far reaching.
The reason federal prosecutors like to charge defendants with “honest services theft” is simple: it’s easier to prove, Frank said.
“It’s the vagueness and the way law has been worded that has allowed prosecutors to get a lot of convictions that you might not be able to get in a straight bribery or extortion case,” Frank said.
In this case, the government alleges that DiMasi violated his duty of providing “honest services” by conspiring to use his “office” as speaker of the House to steer contracts to Cognos software in return for hundreds of thousands of dollars in kickbacks.
For Judge Wolf, fashioning the instructions to explain these concepts, and more, to the jurors would be complicated enough. But at the last moment, the prosecution changed its original theory of the case, according to Frank.
“Initially, and as recently as March, the government’s theory was that in order to return a conviction, the jury must find that DiMasi as speaker of the House ordered that payments be received in exchange for performing an official act,” he said.
In other words, the jury must find that DiMasi demanded that money be paid to fellow conspirators in return for steering the contracts to Cognos. That was the theory.
Then, on the eve of the last day of testimony in this trial, federal prosecutors notified Wolf that they had changed their theory. They now say, “in order to prove the defendants guilty here, what the jury has to find is that Sal DiMasi was aware of what was going on and that he knowingly participated in it. That’s a lot different than ordering a payment,” Frank said.
And easier to prove.
In court Wednesday, defense attorneys were indignant.
“They can’t do a 180 on the last day of testimony,” argued Martin Weinberg.
Weinberg told the judge that the defense has spent the entire trial focusing on the theory spelled out in the indictment two years ago. A theory the prosecution had just tossed overboard. The prosecution is “diluting” its burden of proof, Weinberg charged.
“It flies in the face of everything they have asked the court to instruct this jury,” he said.
The government’s action here is red meat for critics of the honest services statute and the tactics of federal prosecutors.
“The reason the government can change its theory so quickly is precisely because the statute is so vague and so formless. Almost every theory fits into these statutes. And that’s why these aren’t fair trials,” said attorney and author Harvey Silverglate.
In court, lead prosecutor Ted Merritt snapped back that the prosecution’s case against DiMasi hasn’t changed, the evidence is the same, and that the prosecution isn’t bound to stick with its first theory. Wolf said he is inclined to agree, but is open to being persuaded otherwise.
The fate of the defendants may hinge on whether he is persuaded otherwise.