Three Felonies a Day Page 10
Sullivan charged that Finneran lied when he denied his own level and extent of participation in the redistricting process. Finneran testified that he saw the proposed redistricting plan at the same time it was presented to other House members by the redistricting committee. In fact, the indictment claimed, Finneran had considerable knowledge of and involvement in the process of crafting a redistricting plan. Indeed, anyone who knew Finneran would have found it hard to believe that he actually allowed his handpicked committee chairman, Thomas Petrolati, to proceed in something as crucial as the redistricting process without any involvement from the powerful Speaker, whose own district, after all, would be affected by the outcome.
The indictment claimed that prior to the time Finneran admitted seeing the proposed plan—on the day it was disclosed to all the House members—Finneran actually “met with the House Chairman [Petrolati] and others for the purpose of reviewing a redistricting plan.” The indictment alleged that Finneran “made comments” at the meeting and “provided direction as to how that redistricting plan should be altered.” On another date, Finneran “participated in a conference call” about a redistricting plan and, on other occasions, Finneran was present when “a redistricting plan was reviewed.”
One flaw in the indictment was that Finneran’s answers, while they may have seemed clear and categorical on the surface, appear upon closer inspection to be exacting responses to questions that the witness interpreted narrowly, as was his right. What, for example, does it mean to “review” a plan? To one person it might mean merely being told a summary of the contents, or reading a portion of it. To another, it might mean reading it in its entirety.
It’s important to understand that a perjury defendant will seek to create what lawyers call “wiggle room” to convince a jury that his or her answer, taken literally and narrowly, is not a direct and clear falsehood. Is it admirable for a witness, particularly an important public figure, to play such word games with the opposing lawyer? Probably not. One need only recall President Bill Clinton’s caviling about the nature of the word “is” in his notorious 1998 deposition in the obstruction of justice case involving Monica Lewinsky. But modern life, and in particular political life, can be notoriously complicated, and if the law of perjury did not allow for such wiggle room, it would be frightfully easy for vengeful or power-hungry prosecutors to go after the vast number of sworn witnesses who respond essentially honestly, but intentionally narrowly or broadly or extremely precisely, to questions in order to avoid unnecessary embarrassment or offense. Perjury law would become a trap for the unwary rather than a policy aimed at eliciting essentially truthful testimony. And indeed this transformation has already proceeded in federal law, with the building of “perjury traps” into official inquiries where prosecutors almost routinely bring “perjury” or “false statement” or “obstruction”40 prosecutions even where the underlying crime under investigation turns out not to have been committed.41
It was thus readily understandable why Finneran shuffled while under legal attack for having a hand in a redistricting plan that was claimed to be unfair to African-American voters. Similarly, it was understandable that Finneran might have wanted to minimize (while not denying entirely) the extent to which he was involved in the process: he did not want to offend House members by touting his iron grip. But to take the giant leap that Sullivan did, transforming the everyday operation of politics and its accompanying decorum into felony perjury, betrays a troubling misunderstanding of basic American politics, assuming, of course, that Sullivan’s misunderstanding was genuine rather than driven by his own ambitions.
Finneran had a right to feel that he was being unfairly tormented by the plaintiffs in the lawsuit. While he had a reputation as somewhat of a tyrant as House Speaker, any claim that he was a racist was, by all accounts, way off the mark. It may well have been, as the federal court concluded, that the redistricting plan, which created a new overwhelmingly minority district but also diluted the minority populations of three districts, had the potential to produce fewer black House members. On the other hand, as political realists are quick to point out, and as even the court recognized, most redistricting plans are at least partly about protecting incumbents, not intentionally marginalizing the electorate or any group within the electorate. Nonetheless, the court concluded that race ended up being “used as a tool to ensure the protection of incumbents.” In so doing, while they protected black as well as white incumbents, the plans made it more difficult for black voters to attain more black representation. This fact allowed the court to conclude that the plaintiffs had met their evidentiary burden (or, in Judge Selya’s baroque turn of phrase, “the plaintiffs have carried the devoir of persuasion anent each of the three preconditions…”).
But the issue at Finneran’s perjury trial, were he to receive a fair trial, would not have been whether his position was favorable or unfavorable to black voters. Nor would it have been whether he went overboard to protect incumbents both black and white. The issue would have been whether Finneran told a direct lie under oath on an issue material to the outcome of the redistricting civil litigation. And it was on the issue of materiality where Sullivan was likely to meet his most serious obstacle in putting Finneran behind bars.
As the three-judge federal court recognized in Judge Selya’s opinion, the plaintiffs did not have to prove “intentional discrimination” under the VRA, but only “discriminatory effect.” What mattered in the civil redistricting trial was not what Finneran intended, but what resulted, namely an unlawful dilution of African-American citizens’ voting power.
This approach would have made Finneran’s knowledge and intent irrelevant to the outcome of the civil redistricting trial, and hence not material in the criminal perjury prosecution. In fact, what really decided the outcome of the redistricting case was the testimony of expert witnesses and statisticians who persuaded the judges that the outcome of the redistricting had a negative effect on black voters. It was the result , not the intention, that counted. The questions posed to Finneran, and his answers (whether true, false, or “cute”) were therefore likely immaterial to the three-judge court’s deliberations and conclusions.
Even if this legal analysis were to turn out to be a bit strained, one final aspect of this case made the materiality of Finneran’s allegedly false testimony even more questionable. The trial transcript demonstrated that he did not in fact deny all knowledge of or participation in the redistricting process. Rather, he seemed to be trying diplomatically to avoid making it appear that he pulled puppet strings while a powerless and irrelevant House danced, even while he made it clear that he did, of course, play some role. At one point Finneran admitted that he got his friend and long-time confidant, Attorney Lawrence DiCara, involved in the process and that the Speaker exercised a role in the redistricting process through DiCara. Finneran denied that he discussed with Petrolati matters relating directly to the configuration of the Speaker’s own district. Of course, this could very well have been true and Petrolati still would surely have understood that he would have been foolish to promulgate any redistricting plan that would have made it harder for his boss and mentor to get re-elected. Finneran admitted to discussions with Petrolati and others, including his childhood friend DiCara. He even testified that he learned before the redistricting plan was presented to the House that it created a new district with a majority of racial minority voters, that he learned this from DiCara, and that he conveyed to DiCara his approval. Would a jury really believe, and conclude, that Finneran’s failure to admit to other conversations about redistricting could be viewed as “material” to the three-judge court’s conclusions as to the role played by the Speaker in, and his influence over, the resulting plan? Or would the jury conclude that Sullivan’s and Selya’s shot at the Speaker was simply much ado about nothing?
In a properly functioning criminal justice system, such an indictment would not have been brought. My view at the time the indictment was announced42 was that Sul
livan would not win the case unless he forced the former Speaker into a plea bargain. Sullivan, like all federal prosecutors, had many weapons at his disposal for applying such pressure. Not the least was his power to recommend that if Finneran were to plead guilty, the judge should avoid sentencing him to a prison term. Judges’ propensity for following prosecutors’ sentencing recommendations gives the feds awesome powers of persuasion that account for a very large number of guilty pleas in the federal system, including some lodged by innocent defendants.
It has rightly been said that a federal prosecutor can get a grand jury to indict a ham sandwich.43 But a criminal charge should be brought only if the public interest requires it and if a jury is likely to find guilt beyond a reasonable doubt. It was unlikely that Sullivan would prevail before a jury. It is hard to argue against the notion that Finneran was acting precisely as any political figure in his position would have acted. That his two-step around the question of how to characterize his role in the redistricting matter might constitute the federal crime of perjury would surely shock anyone in his position, especially any experienced observer of state politics in Massachusetts, where the legislature has long been supreme and the House Speaker the king of the hill.
Nonetheless, Finneran, who had vacated the Speaker’s chair when he retired from politics in 2004 to assume the position of president of the Massachusetts Biotechnology Council, pleaded guilty to obstruction of justice, by means of perjury, on January 5, 2007. He explained, according to The Boston Globe, “why he lied under oath during a civil trial when he claimed he didn’t see the 2001 redistricting plan until it was filed with the House.” He then paid his obligatory obeisance to federal power in what the Globe termed “an emotional apology” and a “public act of contrition.”44
The prosecutor, Assistant U. S. Attorney John T. McNeil, recommended unsupervised probation for Finneran, rather than a prison term, in part because there was no evidence of any “racial animus” by the defendant. (One can only begin to imagine what the prosecutors would have said on this subject if Finneran had decided to fight rather than plead guilty!) Judge Richard G. Stearns, a scholarly and deliberative judge with a reputation for probity and independence, nonetheless unsurprisingly accepted the prosecutors’ recommendation and sentenced Finneran to 18 months of unsupervised probation and a $25,000 fine, noting the defendant’s “lack of any evil motive,” his career of public service, and his unblemished personal life. (When the prosecutor and the defense lawyer agree on a disposition, even the most independent judge will usually accede and play his role in the script.)
In a barely noticed addendum, Finneran promised, in an unusual (and likely unconstitutional) agreement with the U.S. attorney’s office, not to run for any political office for five years. Judge Stearns, noting his lack of power to enforce this agreement, referred to the court’s belief “that Mr. Finneran is an honorable man and he will keep his word.” In other words, the U.S. attorney had actually sought to remove from the state’s voters the right to put Finneran back into the legislature, and the judge, recognizing the lawlessness of such a usurpation of power by a prosecutor, nevertheless urged Finneran to comply with the promise as a matter, not of law, but of honor. (That this occurred in a prosecution against Finneran for allegedly lying about an unlawful attempt to manipulate the choice of candidates in an election was an unrecognized irony in the outcome of the scripted morality play that unfolded on the day of sentencing.)
During the change-of-plea and sentencing hearing, a few things emerged that help explain why Finneran decided to plead guilty rather than to fight. Were he convicted, Judge Stearns noted, “in the ordinary course, the court would be expected to impose a sentence in the 10-to 16-month range.”45 Finneran, it was disclosed, had been suffering from an intensely painful degenerative hip disorder for which he eventually had surgery. His wife Donna suffered a similar knee problem. Given the government’s willingness to recommend a sentence without incarceration, Finneran was being made an offer he felt he couldn’t refuse.
During the sentencing hearing, Finneran offered a somewhat different explanation for his failure to be fully forthcoming about the degree of his involvement in the redistricting process than a mere reluctance to insult House members by publicly acknowledging his control over them. He told Judge Stearns that he found the civil suit’s accusations “very troubling” and offensive, because “for 26 years I had represented a district that was overwhelmingly African-American, and I took great pride in my service of this district.” He said that he was offended by the implication that he engaged in a “deliberate racial manipulation in order to depress or suppress legitimate efforts at minority representation.” And so he had underplayed, but had not entirely denied, his role. Even the prosecutor admitted to the judge that there was no evidence “that [Finneran] feared representing a district with a large percent of black minority voters [or] that he had a personal desire to ‘whiten’ his own district.” Finneran’s explanation was given in response to Judge Stearns’ expressed confusion about why Finneran would want to underplay his role in a redistricting process that, as Speaker, “it would have seemed almost unnatural had you not been involved.” The sentencing judge, much like Judge Selya who started it all, simply did not understand the internal House politics and protocols of the matter.
As for U.S. Attorney Sullivan, he defended ending the case not with a bang but a whimper this way: “I think Mr. Finneran has had a career of public service that many people would admire…in terms of his passion and his advocacy for a wide range of issues.” Nonetheless, the prosecutor had extracted (coerced might be a more accurate description) an unlawful pledge that this exemplary public servant would not run for public office for five years.
Only time would tell if Sullivan, whose term as U.S. attorney was almost certainly going to end (and in fact did) when President George W. Bush left office some two years later, had in mind his own ambitions for higher elective office when he insisted upon the five-year disqualification provision. That Sullivan, but for Finneran’s legal problems and subsequent five-year disqualification from elective office, figured he might have to tangle for votes with the popular, fellow Irish-Catholic Speaker (now ex-Speaker) is an intriguing but unprovable speculation. Some would argue that Finneran’s conviction alone would, as a practical matter, make him unelectable and hence no realistic obstacle to Sullivan’s electoral ambitions, with or without the five-year disqualification. (Think back to the attack ads that sank Raul Martinez’s 2008 congressional bid almost two decades after his conviction.)
But this was Massachusetts. The Bay State has a history of a rather forgiving electorate, especially when dealing with very colorful or very talented politicians. (Consider James Michael Curley, the famed Massachusetts governor, who was elected to Boston’s Board of Aldermen in 1904 while serving a prison sentence for taking the civil service exam for a friend.) Certainly Finneran’s agreement with Sullivan that the former Speaker would exit the political stage during Sullivan’s post-Bush window of opportunity for elective office would not hurt the U.S. attorney’s career plans. In fact, shortly after the Finneran plea, Sullivan did move up the federal hierarchy, becoming acting director of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. He was, indeed, a man on the move.
As for Thomas Finneran, he also faced the forfeiture of his $30,909 annual public pension, and was fired from his $416,000 a year job with the Biotechnology Council. His aggressive intelligence and quick wit enabled him to land a gig as a local radio talk-show host for the morning “drive time” commute in the 6:00–10:00 a.m. slot. (He also did some lobbying work.) He thus did better than some local politicians in similar shoes. But given the fact that he did not commit perjury, some would view the sentence and other consequences of his plea as rather harsh, and the gentleman’s agreement not to run for office a deplorable infringement of his and the voters’ constitutional rights.
The conviction continued to exact its toll on Finneran’s life. As the
year 2007 drew to a close (and only days before he was scheduled to enter the Massachusetts General Hospital for prostate surgery), the former House Speaker of Massachusetts, arguably once the single most powerful state official in the commonwealth, was pictured in The Boston Herald with tears in his eyes, pleading with the state Board of Bar Overseers for the retention of his license to practice law, which had been temporarily suspended when he got indicted. Finneran tried to explain to the panel that he hadn’t been “aware of specific details of the [redistricting plan],”46 and his supporting witnesses (influential lawyers from prior gubernatorial administrations) complained of “a political witch hunt” by Sullivan, whom they deemed a less than “impartial” federal prosecutor, but it all seemed too little and too late. The time for Finneran to have defended himself, and to have retained his dignity, had passed.
CHAPTER TWO
Giving Doctors Orders
Just before Rosh Hashanah (the Jewish High Holy Days) in 2003, federal agents handcuffed Dr. William Hurwitz in full view of his family and threw him into the back of a squad car. Hurwitz, a prominent physician in the suburban Washington, D.C., area, soon found his assets frozen and his bail set at a staggering $2 million. The government described the doctor, a nationally renowned pain specialist, as “no better than a street corner crack dealer” who “dispense[s] misery and death.”1 Prosecutors boasted in florid war on terror language that Dr. Hurwitz’s case would help the Drug Enforcement Agency “root out” a subculture of physicians-turned-criminals “like the Taliban.” This dramatic, SWAT-team style arrest and the lurid smear tactics that followed were more appropriate for a serial killer than for a licensed physician.