Closing arguments were made in the trial of DiMasi, accountant Richard Vitale and lobbyist Richard McDonough.
By KYLE CHENEY
BOSTON – The following is a chronological summary of closing arguments made by each of the parties in the trial of former House Speaker Salvatore DiMasi, accountant Richard Vitale and lobbyist Richard McDonough.
Prosecutors had the first opportunity to appeal to jurors, followed by Vitale’s lawyer Martin Weinberg, McDonough’s lawyer Thomas Drechsler, and DiMasi’s lawyer William Cintolo. Each party had 90 minutes to argue its case and prosecutors offered a 20-minute rebuttal after the defense sought to cast doubt on the evidence against their clients.
DiMasi prosecution asks jurors to remember "common sense"
Anthony Fuller, an assistant U.S. attorney prosecuting former House Speaker Salvatore DiMasi and two co-defendants on corruption charges, pleaded with jurors Friday to use common sense in their impending deliberation. “The defendants want you to abandon your common sense and believe that those payments … were made in good faith, that they were made for some legitimate purposes. You know from the evidence that these gentlemen knew their conduct was illegal because of their acts of concealment,” Fuller said. “I want you to remember one thing. I want you to remember your common sense. It’s what’s gotten you through life. The way people speak up here is in a very controlled manner, and for a reason … But don’t forget how people act in the real world. Don’t abandon your common sense.” DiMasi is charged with rigging a pair of state contracts – a $4.5 million deal in 2006 and a $13 million deal in 2007 – for Cognos Corp., a Canadian software company. In exchange, prosecutors say, DiMasi received $65,000 funneled through his law partner Steven Topazio, who was signed with Cognos to what prosecutors call a “sham” lobbying deal. “Topazio’s only function was to write checks to Sal DiMasi,” Fuller said. “If the money paid to DiMasi from Topazio, then why all the lies? Why the cover-up?” DiMasi’s longtime friends, lobbyist Richard McDonough and accountant Richard Vitale, are also charged in the scheme, and prosecutors say they received, respectively, $300,000 and $600,000 for their roles in the alleged scheme. The three men are facing charges of conspiracy, mail fraud and wire fraud. DiMasi also faces a count of extortion. Joseph Lally, a Cognos salesman, was also charged in the scheme but pleaded guilty in March and cooperated with the government, testifying against his former co-defendants and vilified by defense lawyers as a liar and a cheat. The following is a series of highlights from the narrative presented by the prosecution in its closing argument:
• Prosecutors painted DiMasi as the state’s most powerful official facing a declining income when he become speaker in 2004. When DiMasi called members of the Legislature or the executive branch with a request, Fuller said, “They’d jump.” When Rep. Robert Coughlin agreed to file a budget amendment in 2006 on DiMasi’s behalf – an act prosecutors say provided funding for the first Cognos deal – it was an “official act” taken by DiMasi to further the scheme, Fuller said. “That, ladies and gentlemen, shows you the power that DiMasi had in 2006,” he said.
• Fuller reviewed exhibits showing that Cognos officials drafted the legislative language for the $13 million deal that eventually ended up in a bond bill approved by the Patrick administration. As that contract was pending within the administration, Lally organized a meeting between DiMasi and the Patrick administration’s IT chief, Bethann Pepoli. “Ask yourselves, does that make sense, that a software salesman would be able to do that?” Fuller said.
• Embracing the defense’s criticism of Lally as a tax cheat and a gambler, Fuller said, "Just the kind of guy you would expect to be mixed up in this kind of scheme.” “Would an honest businessman set up sham contracts to pay bribes to a powerful politician? Of course not,” Fuller said. “He did agree to cooperate and he agreed to tell the truth about his role. He also testified that he expects to go to jail.” Fuller also noted, “He has the speaker’s cell phone number.”
• As the software contracts were pending, Fuller reviewed what he described as DiMasi’s efforts to conceal payments he was receiving through Topazio, including a demand that Topazio break up a $25,000 Cognos payment into four separate checks with four different dates. “That’s called concealment. That’s called consciousness of guilt,” Fuller said.
• Fuller honed in on what he described as efforts to conceal his role in the alleged scheme, including telling his press secretary David Guarino he had no knowledge about the relationship between Cognos and Lally. “If this man acted in good faith … why did he lie to David Guarino, who was left to answer the press inquiries?” Fuller said. “He lied because he knew if he told the truth, his goose would be cooked.”
Weinberg: Government's case "built on a foundation of quicksand"
Martin Weinberg, an attorney for a co-defendant of former House Speaker Salvatore DiMasi, argued that the government’s case against DiMasi is predicated solely on the testimony of Joseph Lally, a “self-admitted perjurer” who had a financial interest in – and a promise of reduced jail time for – testifying against DiMasi. “Without Joseph Lally, this case is built on a foundation of quicksand,” Weinberg said. “Joseph Lally does not have the moral character to respect the truth.” Lally, a former salesman for Cognos Corp., the Canadian software company at the center of corruption allegations against DiMasi and two co-defendants, was accused in the scheme as well but pleaded guilty in March and testified last month. Weinberg, a lawyer for DiMasi’s longtime friend and financial adviser Richard Vitale, said that Lally’s history of lying makes his testimony unreliable and insufficient to convict Vitale. “Mr. Lally lied to a staggering number of people,” Weinberg said, noting that Lally acknowledged lying to friends, family members, business partners, bosses and the IRS and Massachusetts Department of Revenue. Weinberg told jurors to consider the fact that prosecutors offered Lally a sharply reduced jail sentence – between two and three years as opposed to an original potential for nine years – in exchange for his cooperation. They also offered to remove a lien on his house, enabling him to sell it and pay off hundreds of thousands of dollars in debt. Weinberg also told jurors, “Lally lied to you,” suggesting that he perjured himself in violation of his plea agreement. He added, “The case against Richard Vitale is not proven, and not proven is not guilty.” Vitale, DiMasi and lobbyist Richard McDonough are charged with conspiring to rig a pair of state contracts – a $4.5 million deal in 2006 and a $13 million deal in 2007 – for Cognos Corp., a Canadian software company. In exchange, prosecutors say, DiMasi received $65,000 funneled through his law partner Steven Topazio, who was signed with Cognos to what prosecutors call a “sham” lobbying deal. Vitale allegedly received $600,000 from Lally for his role in the two deals, money prosecutors said was being put aside for DiMasi, who they argued was contemplating leaving state government to join Vitale’s consulting firm. Lally testified that the alleged co-conspirators made clear to him that he had to pay Vitale to ensure Cognos got its deals. Prosecutors also argue that Vitale extended a $250,000 line of credit to DiMasi to help cover up a secret $100,000 payment from Cognos in 2006.
• Weinberg suggested that Lally misled jurors about the reason he once withdrew funds from three separate Bank of America accounts in the same day, suggesting that Lally was hoping to avoid reporting requirements for withdrawals above $10,000 but needed nearly $30,000 to pay off gambling debts.
• Weinberg recalled testimony from FBI agent Marc Toulouse in which Toulouse said Lally told him in the courthouse hallway after he testified, “Game. Set. Match.” Weinberg said the comment provided “a window” into his mindset despite testifying that he only wanted to tell the truth and “let the chips fall where they may.”
• Weinberg pointed out that Vitale and Topazio, DiMasi’s law partner, didn’t know each other. “Richard Vitale had nothing at all to do with Cognos’s decision to pay Steven Topazio,” Weinberg said. Weinberg said phone records showing that Vitale and Lally contacted each other during a time when Topazio was seeking renewal of his lobbying contract with Cognos were incomplete, providing no evidence about the substance of the phone calls.
• Weinberg acknowledged the line of credit Vitale extended to DiMasi. But he emphasized that Vitale and DiMasi meticulously recorded the line of credit, never sought to hide it. “There was nothing concealed, nothing hidden and it was fully paid back. What kind of bribe is this?” Weinberg said. Weinberg noted that DiMasi, in part relying on the proceeds from the sale of his wife’s home in Needham, repaid large portions of Vitale’s credit line months before the Boston Globe began probing DiMasi’s relationship with Cognos. “This was a loan without risk that was recorded for the world to see. It’s not a crime,” he said.
• Weinberg emphasized that the contract Vitale signed to consult for Lally – who had formed a Cognos reseller called Montvale Solutions in 2006 – who later paid him the $600,000 in question, was a legitimate contract for business consulting. “This was no sham contract. You have 12 months of exhibits,” Weinberg said. Weinberg suggested that Vitale was hoping to help Lally establish Montvale Education, an offshoot of Montvale Solutions, and make it a nationwide success. “Dick Vitale was going to teach [Lally] to be a CEO,” Weinberg said, citing Lally’s testimony.
• Weinberg said that Vitale had absolutely nothing to do with any “official acts” taken by DiMasi in 2006, when the first Cognos deal went through the Legislature.
• “It’s essential to a bribery kickback that there be some intentional passing of money,” Weinberg said. “Here [prosecutor Anthony] Fuller and I disagree. Joe Lally was never told by Richard Vitale he has to pay $500,000 … Joe Lally never told Richard Vitale, I don’t want to pay the money. Joe Lally never told Richard Vitale that Sal DiMasi would do anything in exchange for money … Mr. Vitale did nothing to corrupt Sal DiMasi.”
• Weinberg said there’s no corroboration for Lally’s contention that DiMasi was planning to leave state government and join Vitale’s firm, WN Advisors, and share in the alleged kickbacks from Cognos. “It’s a sheer invention, and you can only rely on Lally for that invention,” he said. He said the lack of evidence that Vitale set aside funds for DiMasi indicates that the government failed to prove DiMasi benefits from the purported kickbacks. “It’s a fatal flaw, a gaping hole. Sal DiMasi didn’t get one dollar of that $500,000.”
• In his conclusion ,Weinberg painted a picture for the jury about what the prosecution’s case would look like without Joseph Lally. He said it would largely consist of records of meetings between the alleged co-conspirators, meetings he said were documented for all to see. He said the evidence would show a fierce lobbying competition for the 2007 deal that Cognos eventually won. “There’s nothing wrong with that. It’s done every day,” he said.
• The ubiquity of lobbying in state government figured into Weinberg’s closing argument. He argued that lobbyists frequently draft the legislative language that makes it into budgets or separate bills. In the 2006 budget that included the $4.5 million deal that later went to Cognos, Weinberg said, “There’s 1,600 amendments … The legislators don’t draft every word.” He added, “It’s language that somebody wants put into legislation. It’s done every day in every capitol.”
Lawyer: McDonough lobbied legally, Lally motivated by greed
Thomas Drechsler, the lawyer for lobbyist Richard McDonough, one of former House Speaker Salvatore DiMasi’s co-defendants, argue that lobbyists enjoyed widespread access to DiMasi and that McDonough’s meetings with the speaker on behalf of his client, Cognos Corp., were a small subset of the meetings between DiMasi and lobbyists and not indicative of a crime. “It isn’t as unusual as the government would like you to think that it is,” Drechsler said. DiMasi and McDonough are charged, along with accountant Richard Vitale, with conspiring to rig two state contracts – a $4.5 million deal in 2006 and a $13 million deal in 2007 – for Cognos, a Canadian software company, in exchange for hundreds of thousands of dollars in kickbacks. DiMasi is accused of selling his office in exchange for $65,000 funneled through his law partner, Steven Topazio, who had signed what prosecutors say was a “sham” lobbying contract with Cognos and shared his fees with DiMasi. McDonough, prosecutors say, received $300,000 as a result of his role in the two deals. A fourth co-defendant, Joseph Lally, a Cognos salesman at the time of the two deals, pleaded guilty in March and testified against his former co-defendants. Drechsler contended that McDonough engaged exclusively in legitimate lobbying work, and payments he received, Drechsler said, were for performing that work. Drechsler continued the defense team’s assault on Lally, arguing that the only evidence of his client’s guilt came from Lally, who he said should be viewed by the jury as a liar and a cheat who is motivated solely by money. “Greed pervades Mr. Lally’s soul and everything that he does,” Drechsler said. Prosecutors have contended that McDonough helped arrange covert payments from Cognos to DiMasi, using Topazio as the “unwitting conduit,” but Drechsler rejected the claim, questioning Lally’s honesty. “The only person who suggested that Richard McDonough needed to funnel money to Mr. DiMasi was Mr. Lally,” he said.
• Drechsler pointed out that McDonough, who received money from Cognos through Lally, a Cognos reseller at the time of the deals, paid Lally back more than three times the amount as a result of a fee arrangement they agreed upon for clients Lally helped steer to McDonough.
• Drechsler contended that Lally lied to jurors about a conversation he had with McDonough on a golf course in which Lally testified McDonough sought to renew Topazio’s contract.
• Drechsler contended that Lally was motivated to assist the prosecution because they offered him a deal that enabled him to sell his house and pay off hundreds of thousands of dollars in gambling debts. He added that Lally, before his plea, was a defendant and had been reviewing the government’s evidence, determining what he could offer them to build their case. As part of his plea deal, he was guaranteed a reduced sentence of two to three years in exchange for providing “substantial assistance” in their case against DiMasi, McDonough and Vitale. Drechsler said that Lally, while on the stand, was likely thinking, “How do I please the U.S. attorney? How do I please the U.S. attorney? How do I get substantial assistance? How do I get substantial assistance?” He called Lally the government’s “partner” in the prosecution effort and said the government glossed over inconsistencies in Lally’s statements. “They own him,” Drechsler said.
• McDonough wasn’t uniformly successful in his attempts to lobby DiMasi, Drechsler pointed out, suggesting that his relationship with DiMasi didn’t guarantee outcomes for McDonough’s clients. For example, Drechsler said, McDonough lobbied on behalf of Suffolk Downs for the introduction of slot machines at state racetracks. “If my client had corrupted Mr. DiMasi, where are those slot machines?” Drechsler said.
• Drechsler argued that evidence shows that McDonough never saw Topazio’s contract with Cognos – in part because Lally shielded him from it – until March 2007, shortly before the contract was canceled. Lally’s suggestions to the contrary, Drechsler said, are a lie.
• Drechsler said Lally’s version of events surrounding the Topazio contract – that he and McDonough approached Topazio about signing the contract in December 2004 – raised questions about timing. Topazio never received a contract until March 2005, he noted. “If this was a bribe, it was sort of in slow motion,” Drechsler said. Drechsler also noted that if McDonough was really participating in a bribe scheme, he would never have let the Topazio contract lapse, as it did twice in the two years Topazio was on the Cognos payroll.
• Drechsler railed against Lally’s testimony that McDonough may have used more than one phone, which may have explained the absence of any records that McDonough and Lally spoke in mid-December 2006. Drechsler ripped the suggestion that McDonough kept a “secret phone” that even the FBI couldn’t find. He called Lally a “scoundrel” and described him as a compulsive liar. “That guy cheated and lied and perjured himself to avoid paying $7,500 [in taxes] … when he made $1.5 million.”
• Drechsler reread a profanity-laced email that Lally sent to Vitale in which he ripped McDonough for refusing to share certain lobbying fees with him even when Lally described himself as “down and out and desperate.” Drechsler described Lally as a “degenerate gambler” and said the jury should remember that in their deliberations. “Someone who is a degenerate gambler is not someone who’s credible.” Drechsler mocked the government for failing to present evidence of Lally’s credibility. “Let’s look at the list of people that the government came up with who testified that Joe Lally is an honest person and has a reputation for truthfulness and honest,” Drechsler said. “It’s a blank piece of paper.” He called Lally a “bum” and said “the next time he tells the truth, I would suggest to you, would be the first time.”
• “The government is serving up to you a case against my client based on Joseph Lally … They’re serving what I would suggest to you is the spoiled meal of Joseph Lally,” Drechsler said. “They give it to you and ask you to serve it … You may rest assured that if anyone else in this courtroom was ever accused by Joseph Lally in this courtroom of doing something, they would be outraged.”
DiMasi lawyer: "Not a morsel" of evidence that DiMasi took bribes
Prosecutors offered no evidence – “not a morsel, not a grain” – that former House Speaker Salvatore DiMasi took payments from Cognos in exchange for pushing a pair of state contracts on behalf of Cognos Corp., a Canadian software company. As a result, DiMasi lawyer William Cintolo said, the prosecution failed to meet its burden of proving “beyond a reasonable doubt” and jurors must judge the case by that standard. “In this courtroom, it’s not proof beyond a reasonable doubt-ish. It’s not, not guilty-ish.” Prosecutors say DiMasi rigged a pair of state contracts – a $4.5 million deal in 2006 and a $13 million deal in 2007 – for Cognos in exchange for $65,000 in kickbacks funneled through DiMasi’s law partner Steven Topazio, who had signed what prosecutors called a “sham” lobbying deal with Cognos. Prosecutors also allege that DiMasi’s financial adviser Richard Vitale received $600,000 and Cognos lobbyist Richard McDonough received $300,000 for their roles in the deals. McDonough and Vitale are also charged in the alleged scheme. The three men are accused of conspiracy and honest services fraud. DiMasi also faces a coujnt o extortion. A fourth defendant, Joseph Lally, a Cognos salesman at the time of the deals, pled guilty in February and testified against DiMasi, Vitale and McDonough. Cintolo argued that prosecutors were asking jurors to “pile inference upon inference upon inference” to conclude that DiMasi worked on Cognos’s behalf “because of” the payments he received. But Cintolo insisted that the evidence failed to indicate a causal relationship between DiMasi’s actions in support of software of the type sold by Cognos and the payments he received as a result of his fee sharing arrangement with Topazio. “You cannot decide that maybe it happened, it could’ve happened, it might’ve happened,” he said. “Proof beyond a reasonable doubt … The burden rests upon the government to make that causal connection.”
• Cintolo pointed out that evidence repeatedly shows DiMasi’s interest in “performance management software” an application offered by Cognos but also several other vendors. Performance management, he said, is a concept intended to help state government gather data about major programs more effectively to ensure that taxpayer dollars are being stretched to their maximum value. He also pointed out that there were several legislative opportunities for DiMasi to take actions on behalf of Cognos that he opted against.
• Cintolo said no evidence, “not one scintilla of evidence, not one document, not one memo” indicates that DiMasi ever saw the legislative language that ultimately was inserted in a 2007 bond bill that later authorized funding for the $13 million Cognos deal. “In this massive administration, is there one document – one, one document – indicating what would be in [the bond bill]?” he said. “I don’t think so.” Cintolo said prosecutors gave the impression that DiMasi “demanded” performance management be in that bond bill, but he suggested that DiMasi was simply responding to the Patrick administration question about whether there were any programs he would like to include in the bond bill.
• Cintolo repeatedly suggested that prosecutors spun the evidence to make DiMasi’s actions seem more sinister than they really were, whether it was his phone calls to Patrick administration officials to inquire about the status of performance management software or his run-ins with senior administration officials at public events.
• Cintolo said the government failed to prove why DiMasi’s decision to break up a $25,000 check from Topazio into four smaller amounts was evidence of a cover-up.
• The $13 million contract awarded to Cognos in 2007 was voided in 2008, Cintolo said, not because investigators faulted DiMasi but because the Patrick administration failed to follow competitive bidding rules. When the Boston Globe called in 2008 to ask about DiMasi’s relationship to Cognos, Cintolo said, DiMasi insisted rightfully that the House has no role in procurement.
• Cintolo pointed that Gov. Deval Patrick acknowledged that DiMasi’s request for performance management software was akin to similar interactions between legislative leaders and the governor on other policy matters, not a “horse trade” but a reminder to remember each other’s priorities.
• Cintolo cast doubt on the accuracy of Lally’s claim that DiMasi once told him and McDonough, “"I'm only going to be speaker so long so it's important that we make as much hay as possible.” “Can you imagine a North End kid, a North End lifer, saying ‘let’s make hay?’” Cintolo said, disbelief in his voice.
• “In Judge Wolf’s courtroom two and two always adds up to four,” Cintolo told jurors as he concluded his closing argument, adding, “You will see that the evidence adds up to not guilty.”
Merritt: Jury has evidence to see "an ugly picture of corruption"
Theodore Merritt, an assistant U.S. attorney prosecuting former House Speaker Salvatore DiMasi and two co-defendants on corruption charges, rejected the defense’s closing arguments as an effort to distract from incriminating evidence and suggested that the defense lawyers provided more entertainment than substance. “I’m not going to be as entertaining as some of the attorneys that came before you,” he said. “This isn’t a comedy show. This is about corruption by one of the highest public elected officials and his two cronies.” Merritt rejected the defense’s contention that the lack of an explicit conspiracy agreement means that there is insufficient evidence to convict DiMasi, lobbyist Richard McDonough and accountant Richard Vitale. “He knows that a smart criminal tries to avoid leaving his fingerprint at the crime scene,” Merritt said. “Sal DiMasi would and did use intermediaries.” “The truth is singular and the truth in this case is that these three men and Lally were in a bribery kickback scheme to exploit the power of the speaker of the House,” Merritt continued, adding, “You have enough evidence to see what is an ugly picture of corruption.” Merritt also sought to defend the prosecution’s reliance on Joseph Lally, a former Cognos salesman, as a key witness in the case. “He owned up to just about every lie, every vice the defense could drudge up,” he said. “If you think the government is in some conspiracy with Joseph Lally to convict these men, well, then we’ve got other problems … It wasn’t the government that selected Joseph Lally to be in this conspiracy, it was his co-conspirators.”