Note: To make it easier to keep track of things, I created a brief “who’s who” of the people involved in this case.
During the Sal DiMasi trial we’ve heard from various people involved in state government and gotten an inside look at how the legislative process works. But none was as high-profile as today’s witness, Governor Deval Patrick himself.
The courtroom was completely packed for the governor’s testimony, as you might expect, but all the spectators, reporters, and supporters of the three defendants had to wait quite a while. For almost the first hour of court, prosecutors and defense lawyers argued about a defense motion filed yesterday to strike a portion of Leslie Kirwan‘s testimony, when she said that if she had known that DiMasi received legal fees for promoting the interests of Cognos, she would not have approved the performance management software contract and would have sought legal advice. Judge Mark Wolf ruled that he would deny the motion, at least for now.
At 9:50, Kirwan, the state Secretary of Administration and Finance, took the stand to continue her testimony from Wednesday. On cross-examination by DiMasi’s lawyer, Thomas Kiley, she said that the Cognos software contract (which allegedly was included because of bribes paid to DiMasi) was not the only non-emergency item included in what was supposed to be an emergency bond bill in 2007. A $4.5 million data and automated citation system for police was included as well. Additionally, she admitted, when asked by Kiley, that during her interactions with DiMasi when he mentioned the idea of buying the software, there was “nothing heavy handed…no ‘I”ll give you this, you give me that.’” Moreover, DiMasi’s urging was not the sole reason for choosing Cognos as the vendor for the software; the Information Technology Department (a subdivision of Administration and Finance) strongly recommended it, and Kirwan’s staff had input into the decision as well. In fact, during her grand jury testimony, she had said she “did not feel influenced” by DiMasi’s interest. Today she did not directly admit that but just said, “I made the best decision that I could under all the circumstances facing me.”
On re-direct examination by Assistant U.S. Attorney Theodore Merritt, she reiterated that DiMasi asked her about performance management software “in his official capacity as speaker of the House” and that it stood out to her because “he reached out to me personally.” However, once the software was purchased, no one from his office followed up with her about implementation.
At 11:30, after a 15-minute recess, Governor Patrick finally entered the courtroom and took the witness stand, wearing a dark suit, light blue shirt, and green tie. Merritt conducted his direct-examination. Speaking calmly, the governor explained that he initially conceived of the 2007 emergency bond bill as a way to fund transportation projects in order to get matching federal grants which otherwise would have been forfeited. Every Monday afternoon, he had legislative leadership meetings with DiMasi, Senate President Therese Murray, Lieutenant Governor Tim Murray, Kirwan, and others. DiMasi “wanted to add to the bond bill authority to bond for performance management software” and described how valuable it would be for tracking state agencies, projects, and programs. Patrick agreed and was interested in the concept as well. “Not in the emergency bond bill initially, but it was something we were interested in,” he said. More than once, DiMasi reminded Patrick of the software idea and asked how it was going, but he never mentioned the company Cognos.
In the spring of 2007, Patrick began having difficulty getting proposals through the legislature, such as additional funding for police and life sciences. Rep. Michael Capuano arranged a breakfast meeting at the Four Seasons Hotel in Boston between the governor and the speaker. They discussed, in Patrick’s words, “what I wanted to see moved, what the speaker wanted to see moved.” Patrick mentioned life sciences and a data center in Springfield; DiMasi, as usual, mentioned the performance management contract, saying ,”Don’t forget, that contract’s important to me.” The governor told his staff, “If we could do it within the rules, then go ahead.”
A lighthearted moment happened when an email that Patrick had sent after this meeting was shown on monitors. The sender was “Sally Reynolds,” which Patrick explained was his code name, a combination of his grandmother’s and grandfather’s names. “You’re gonna need a new one,” Judge Wolf quipped.
Merritt then asked, “If you knew that Speaker DiMasi had received money from legal referral fees derived from Cognos in return for pushing Cognos’s interests, would you have acted any differently as governor?” Patrick replied, “Yes…we wouldn’t have proceeded.” He answered similarly when asked what he would have done had he known that DiMasi’s financial advisor (Vitale) was receiving $500,000 in exchange for him taking official actions, adding that he may have gotten advice from the state ethics commission.
After the deal was signed, Patrick’s staff brought up concerns about “the integrity of the process,” and he referred them to the Inspector General’s office. He spoke with DiMasi shortly after an article was published in the Boston Globe about this. “He was angry and upset about the article and said he believed our staff had leaked information to the Globe about the Inspector General’s review,” said Patrick. When the speaker asked him to tell the press that DiMasi had no interest in the contract, he said “we couldn’t do that because it wasn’t accurate.”
DiMasi’s other lawyer, Bill Cintolo, took the podium to cross-examine the governor. “I have a very loud voice,” he warned him, to laughter from the gallery. “In the private sector, your talents would have commanded a considerably higher salary than you received as governor?” he asked. “I hope so,” Patrick replied, to more laughter. Cintolo drew attention to the fact that it is extremely common for people to donate to campaigns, and that often, “after those contributions are made, they seek to do business with the Commonwealth of Massachusetts.” Cintolo displayed records showing that Cognos had made a contribution to Patrick’s inauguration fund, and Patrick agreed that as a general matter, “Sometimes things happen after something occurs but not because something occurs.” In other words, Patrick approved the Cognos contract after the company made their contribution, but not because of the contribution.
DiMasi never said, “I am asking about this contract because I’ve been paid by Cognos to do that,” nor did he say “I’m getting paid for this; you gotta do it,” or “Do this for me and I’ll do life sciences for you.” Instead, it was Patrick’s decision to approve the contract. “You would ultimately make a decision on the merits?” Cintolo asked. “Sure,” he replied. He also agreed that he replied to DiMasi’s suggestions with “I’ll consider it” as opposed to “I’ll do it,” and that his staff vetted the performance management idea and he concluded, “This is pretty good.”
Later, countering the prosecution’s assertion that the state had not signed another $15 million performance management software deal, Cintolo brought up that there is currently a proposal in the Senate for that type of software. “I think so but I’m not sure,” said Patrick.
After an hour and 15 minutes on the stand, Patrick left, and court adjourned until Tuesday.
Read more about the governor’s testimony at the Boston Globe, Boston Herald, NECN, and AP.
