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Finneran’s wake (continued)

Related links

"Animal" Crackers

Harvey A. Silverglate’s Boston Phoenix article on the Vincent Ferrara case.

Black Political Task Force v. Galvin

Selya’s opinion for the three-judge-panel ruling on the redistricting case.

Fatal footnote

So why would Sullivan indict Finneran? Let’s ignore for the moment his political ambitions and the general consensus that Finneran’s head would give the US attorney a boost on his path to electoral power. Sullivan may have been swayed by Selya’s remarkably judgmental but politically naive language in the trial opinion — something for which the judge is well known. It is not unusual to see Selya gratuitously criticize, in sarcastic and sometimes grandiloquent fashion, a party or witness. He has earned a reputation for tossing around both his power and trademark one-hundred-dollar words, and the BPTF opinion is no exception. He noted, for example, "the parties’ plenitudinous submissions" rather than simply numerous filings. We’re told that in a major voting-rights case "the Supreme Court limned three threshold conditions" instead of simply outlined. Well, you get the point.

Early in his opinion, Selya observed that the House Redistricting Committee "was content to leave the heavy lifting to Finneran" as well as to Petrolati, the committee chair designated by Finneran. "Finneran and Petrolati," Selya concluded, "kept the process on a short leash." That was followed by a fatal footnote, the kind of gratuitous, overstated slap for which the judge has become infamous: "Although Speaker Finneran denied any involvement in the redistricting process," Selya wrote, "the circumstantial evidence strongly suggests the opposite conclusion. For one thing, he handpicked the members of the Committee and placed Petrolati at the helm. For another thing, he ensured that the Committee hired his boyhood friend and long-time political collaborator, Lawrence DiCara, as his principal functionary. Last — but far from least — Finneran’s in-house counsel, John Stefanini, had the Maptitude [redistricting] software installed on his computer in the Speaker’s office suite and was one of only four legislative staffers who received training in how to use the software."

Denied any involvement? Hardly. Finneran, like most figures in his position, preferred to be demure rather than speak bluntly about his power over fellow House members. He was supposed to be a House leader, after all, not a puppeteer. But, crucially, the wily former Speaker, being under oath, took care not to deny his influential role entirely — he walked a thin line, but he likely did not commit perjury.

But Judge Selya was determinedly tone-deaf to such nuances. His hostility was visibly unrestrained during Finneran’s testimony, and he barely disguised his belief that the former Speaker was being dishonest. At one point, the plaintiffs’ lawyer asked Finneran if he’d read a particular article in the Boston Globe. Finneran said that he had "some doubt" whether he did. This prompted Selya to pick a fight with the witness: "Well, why do you have some doubt?" he interrupted. "Because, frankly, it strikes me as unusual that someone in your position wouldn’t read coverage in a major daily newspaper in Boston about ongoing matters in the legislature." Finneran responded, understandably, that sometimes it was "physically impossible to get to them. That’s all."

Selya also got into a revealing scuffle with Finneran about his influence over the appointment of House committee chairs. Finneran admitted only to "recommending" chairmen for final approval by the House. Selya, visibly annoyed by Finneran’s effort to understate his power, jumped in to inquire whether the House had ever actually rejected any of the Speaker’s recommendations. Pressed by the judge, Finneran admitted that no, it never had. But of course, as anyone versed in the art of politics knows, a good leader works out the kinks out of public view but also minimizes the visibility of his own exercise of power so as not to publicly demean his fellow House members. At one point Selya even criticized the brevity of House and Senate debates, as if he did not know that much legislative work — including marshaling votes for key appointments — is done behind the scenes.

Selya took every opportunity to puncture Finneran’s credibility, and when the opinion was released, it was eagerly exploited by the former Speaker’s critics. Selya’s footnote in particular caught the eye of at least two critics, namely Pamela H. Wilmot, executive director of Common Cause, the government-reform advocacy group, and Jeanne M. Kempthorne, a former federal prosecutor who worked with the organization in seeking to persuade US Attorney Sullivan — her former boss — to bring the perjury charge.

Glass houses

Given the merits of his case, Sullivan is unlikely to prevail unless he pressures Finneran into accepting a plea bargain. Sullivan has many weapons at his disposal for applying such pressure, not the least of which is his power to recommend that if Finneran pleads guilty, the judge refrain from imposing a prison term. But Sullivan’s power to indict (it is rightly said that a federal prosecutor can get a grand jury to indict a ham sandwich) and to pressure Finneran into a plea bargain is not the standard by which a federal prosecutor is supposed to decide whether to charge a citizen. Besides, the former Speaker’s legendary toughness might well thwart any effort to pressure him into pleading guilty.

Sullivan may have made a grave political as well as legal miscalculation. Finneran is in a good position to defeat him, all because Sullivan took the opinionated rants of a self-important and politically naive judge to heart. The US attorney is also vulnerable to charges of hypocrisy and poor judgment, thanks to his highly protective attitude toward one of his own assistants, recently found by federal judge Mark Wolf to have engaged in — get this — perjury and obstruction of justice in the case of alleged Mafia member Vincent Ferrara (see " ‘Animal’ Crackers," News and Features, June 17). Sullivan’s failure to clean his own house, combined with his thumbless grasp — following Selya — of how House business is conducted, may send him spiraling into political oblivion, with the distant echo of Tom Finneran’s cackle ringing in his ears.

Harvey A. Silverglate, a frequent "Freedom Watch" contributor, is completing a book on abusive federal prosecutions. He can be reached at has@harveysilverglate.com

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Issue Date: June 24 - 30, 2005
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