DiMasi Returns To Court For Sentencing Hearing

Former Massachusetts Speaker Salvatore DiMasi goes back to court Thursday to find out how long he'll spend in prison, and when he'll head there. DiMasi and his co-defendant, Richard McDonough, were convicted in June on federal corruption charges. Their sentencing hearing starts at 1 p.m. Thursday and is scheduled the run through Friday.

WBUR's David Boeri has been covering the DiMasi case. He joined Morning Edition Thursday to preview the hearing.

Bob Oakes: Explain exactly what's going to happen Thursday?

David Boeri: There are two issues that are going to be resolved. The first is how long DiMasi and McDonough go to prison for. The second is whether they're going to be allowed to stay out of prison until the appeal of their verdict, as decided by a higher court.

You'd think those would be straightforward decisions, but they're anything but. The issue of sentencing itself, the sentencing guidelines involve this quantitative formula. If you love sabermetrics and Bill James, you'd love this system. It's a Cartesian coordinate system of all these different factors that are weighed up and it requires a mathematician or a magician to figure it out. And then you argue for upward departures or downward departures, so that going to take place.

It takes a lot of time, there's going to be testimony. DiMasi himself could take the stand, or his wife, to ask the judge to show some leniency.

What it boils down to is the defense is asking for a three years in jail, prosecutors seeking 12 years and seven months. Why is the federal government looking for what is viewed as a pretty tough sentence?

Prosecutors want to make an example of DiMasi. And they're clear, they say they're seeking the longest sentence for public corruption in the state's history. They're going to argue that the previous sentences have not had a deterrent effect on public corruption.

Here's how David Frank, the managing editor of Massachusetts Lawyers Weekly, explains it:

They mention explicitly in their sentencing memorandum that Sal DiMasi is the third consecutive House speaker to be convicted in federal court. They make reference to Tom Finneran and to Charles Flaherty, and they essentially make the point to Judge [Mark] Wolf that there has to be a message sent to others on Beacon Hill that this type of corruption can't be allowed.

How does the defense counter that argument?

They say it's way over the top and unwarranted. And what they're doing — which might be effective — they've come up with examples of other public officials that have been convicted of the charge of honest services fraud.

For instance, Corey Kemp, who was the treasurer of the city of Philadelphia, convicted on that same charge, he's sentenced to seven years. George Ryan, the former governor of Illinois, he's convicted of that same charge, selling government licenses in his case, he was sentenced to six-and-a-half years. And then there's the former mayor of Bridgeport, Conn., Joseph Ganim, he was convicted of using his office to collect $500,000 in kickbacks, and he was sentenced to seven years. So they're all way out of line with what the government wants to get for DiMasi.

And by the way, defense attorneys also point out that DiMasi received $65,000, which is far less than the other public officials across the country whose examples they cited.

Let's talk about the other question that you mentioned, when DiMasi and McDonough will start serving their sentences. How are arguments around that question going to play out?

This is where it is going to get complicated, because in determining whether or not to let them stay free until their appeal is decided (Judge) Wolf has to determine whether they're likely to prevail when they appeal their verdicts. And that's gone up to the Court of Appeals.

What we're going to get into is this intense legal argument about what constitutes honest services fraud. So you're going to have this whole arguement about that very vague law.

Here's David Frank again:

That's going to require the court to really get into the nuts and bolts of the legal issues, and those legal issues deal with the United States Supreme Court's decision in Skilling v. U.S., where the court narrowed the scope of honest services fraud. And there's going to be a lot of questions about what an official act is and what an official act is not.

So that gets us into the weeds of a legal argument. This is going to be taking two days. So the defense is going to argue DiMasi is likely to prevail, and he and McDonough should be free. But remember, that could mean months, or more likely a year or two before that's decided.

Just ahead of Thursday's hearing, on Wednesday, Judge Wolf released about 100 letters issued on behalf of DiMasi and Richard McDonough, character letters on behalf of the two. How do these letters fit into all this, and how much impact do you think they will have on sentencing determination?

The letters are affecting, they're very affecting, they're emotional, particularly that of Debbie DiMasi (DiMasi's wife). But you'd expect these letters, and judges expect the type of letters that they receive. The reality is they don't have a whole lot of effect on judges, and in most cases, the judge knows how serious this is and is probably unlikely to be affected by the letters — more by other arguments — but this is going to be two dramatic days.

There was some talk on the street Wednesday, just by regular folks, who speculated that maybe the judge released the letters because he was softening up the public for a lenient sentence, but you don't seem to think that might be the case.

No, and in other trials where he's presided he has released letters before. I don't think that's the case at all. Again, when your loved one, your friend, your father, is scheduled to go to prison, you're going to write a letter, and you're going to make all the compassionate pleas imaginable. That's just what's done, it happens in every case, and judges are used to that, and they go on.

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