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Finneranís wake
US Attorney Michael Sullivan is riding high on the former House Speakerís perjury indictment. Too bad itís much ado about little.
BY HARVEY A. SILVERGLATE

The federal indictment of former House Speaker Thomas Finneran for perjury and obstruction of justice was widely hailed as a triumph of justice, a richly deserved comeuppance for a pol whose thirst for power was unslakable. All the more remarkable, the story seems driven by chance, involving an unusual cast of characters thrown together by fate: a federal judge in love with his own power and legal prowess; a politically ambitious chief federal prosecutor; and an autocratic legislative leader. But although the tale won accolades in media circles, US Attorney Michael Sullivan may have a considerably harder time getting a conviction from a jury of 12 ordinary citizens, who will be more concerned with rendering justice than with satisfying personal or political agendas.

Finneranís indictment stems from his testimony in a 2002 lawsuit brought by the Black Political Task Force (BPTF). The group claimed that a Massachusetts redistricting plan discriminated against African-American citizens by concentrating black voters in too few voting districts. Then-Speaker Finneran denied that he had detailed involvement in the plan before it was disseminated to House members. After a three-judge panel overturned the plan, Sullivan ostensibly felt compelled to indict Finneran. A careful parsing of the actual trial testimony, however, together with consideration of the motives and personal styles of both Sullivan and Judge Bruce Selya, who wrote the BPTF opinion, shows that neither man was impartial or savvy with regard to the former Speakerís delicate position while testifying about the redistricting plan.

Truth or consequences

Perjury is one of the harder federal crimes to prosecute, which is one reason it is rarely brought for an alleged lie in a civil proceeding such as the BPTF trial. For one thing, the lie must be shown to be clear and direct. It is not enough that the witnessís statements were vague, somewhat misleading, or "cute" ó that is, intentionally narrow, relying on word games and on the failure of a questioner to pin him or her down. Equally important, the lie has to be shown to be material ó that is, clearly relevant to the issue in the proceeding. In the Finneran prosecution, the feds will likely have trouble on both scores.

Sullivan alleges that Finneran lied when he denied participating in the redistricting process. Before the plan was distributed to his colleagues, according to the indictment, Finneran "met with the House Chairman [Representative Thomas M. Petrolati] and others for the purpose of reviewing a redistricting plan." At that meeting "Finneran reviewed a redistricting plan ... and ... provided comments and instruction as to how two districts should be merged ..." On the surface, the indictment seems planted on solid ground: after all, anyone who knows the powerful former Speaker would find it hard to believe that heíd allow his handpicked committee chairman, Petrolati, to proceed in something as politically charged as the redistricting process without the Speakerís involvement.

Sullivanís case rests on what he claims were Finneranís clear and categorical denials. Trouble is, the testimony reveals a witness who, out of a need to exhibit diplomacy toward fellow House members so as not to make them appear to be his puppets, felt obligated to interpret every question in the narrowest possible way. However, at points in his testimony conveniently not mentioned in the indictment, Finneran did confess to monitoring the redistricting, and even to having made certain strategic decisions that affected its outcome. At one point Finneran even admitted that he arranged to have his friend and long-time confidant, attorney Lawrence DiCara, "provide counsel, legal guidance on all legal matters that might arise" from the redistricting plan. A short time later, Finneran admitted having conversations about the plan with Petrolati. Both men, Finneran implied, served as his intermediaries during the process. Finneran even made the crucial admission that he learned, before the redistricting plan was presented to the House, that it would create a new district with a majority of racial-minority voters; that he learned this from DiCara; and that he conveyed to DiCara his approval. It will be hard to get a jury to ignore these concessions and buy Sullivanís claim that Finneran flat-out denied knowledge and involvement.

Finneran is alleged to have denied, for example, "reviewing" the draft redistricting plan. But while one person might think that "reviewing" a plan means merely skimming it, another might think it connotes a more thorough reading. The nature of both the question and the answer gives a perjury defendant what lawyers call "wiggle room" to convince a jury that the answer, taken literally and narrowly, was not a falsehood. It may not be admirable for a witness, particularly an important public figure, to play such word games, but it is doubtful that Finneran will be convicted for attempting to downplay, while not denying entirely, the realities of his leadership position.

In the end, Finneran hedged, but did not categorically deny his power and participation in the redistricting process. That complicates Sullivanís perjury charge and may very well wreck his case. Finneranís denials and admissions were carefully calculated. He was determined, despite some evidence to the contrary, to avoid giving the impression that he pulled puppet strings while a powerless House danced. But, in light of what he did admit, is this really perjury?

Another crucial issue at Finneranís trial will be whether his alleged lies affected an issue material to the outcome of the redistricting litigation. As the three-judge federal court recognized, "to prevail under this statute [the Voting Rights Act], plaintiffs need not establish that the Legislature acted with a discriminatory purpose" ó rather, it is necessary to prove only that the plan had a discriminatory effect. The court concluded that this "relieved" the plaintiffs "of the burden of proving intentional discrimination." As a consequence, what Finneran knew or intended ó and, indeed, the intent of the House itself ó regarding the redistricting plan should have been wholly irrelevant to the outcome of the redistricting trial, and hence not material. In fact, what really decided 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 the ability of black voters "to participate in the political process and elect candidates of their choice." African-American citizens, the court correctly concluded, were super-packed into fewer electoral districts, making it more difficult for black candidates to win more House seats. Furthermore, Finneranís partial admissions arguably make his occasional denials less material. At the very least, when Finneranís jurors learn of the materiality requirement in a perjury charge, it likely will cause them to wonder whether the indictment is much ado about little.

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Issue Date: June 24 - 30, 2005
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