U.S. Attorney Robert Clark Corrente argues against a motion in front of Chief U.S. District Judge Mary M. Lisi. In foreground, from left, are prosecutors Annlou Tirol, Daniel Petalas and Stephen G. Dambruch.

The Providence Journal / Frank Gerardi

PROVIDENCE –– The credibility of John Celona, the state’s star witness in the federal corruption case against two former CVS executives, came under sharp attack from the defense yesterday, but their lawyers declined to take up the judge’s offer to let them recall the corrupt former state senator to the witness stand.

Instead, the defense in the trial of John R. “Jack” Kramer and Carlos Ortiz rested its case without calling any witnesses. Chief U.S. District Judge Mary M. Lisi gave the jurors the day off today and scheduled a private chamber conference with lawyers for both sides this afternoon to discuss her charge to the jury. Closing arguments are set for tomorrow.

For several dramatic minutes yesterday, it appeared that the judge might throw out the federal corruption case because the prosecution had failed to disclose key information on the eve of trial.

Instead, the judge gave the defense the option of recalling Celona, to clarify that the former CVS consultant developed “new memories” of an important event in the government’s case against Kramer and Ortiz.

But having covered that ground during three days of cross-examination last week, the defense opted not to bring back Celona, and rested without calling any witnesses.

Neither Kramer, nor Ortiz will take the stand to explain why CVS hired Celona, a state senator from North Providence, as a $1,000-a-month consultant from 2000 to 2003.

The prosecution presented evidence that Celona was paid from CVS’ Political Contributions account, and that he did political favors for the company as a powerful Senate committee chairman. The defense countered that Celona was paid to enhance the Woonsocket-based drugstore chain’s public image.

The jury is expected to begin its deliberations on Friday.

Yesterday, the drama came at the start of the trial’s third week, before the jurors were brought into the courtroom, when Lisi heard a defense motion filed last week seeking a mistrial.

The defense accused prosecutors of knowingly eliciting false testimony from Celona. The requested sanction was “extraordinary” but warranted, said Kramer lawyer Scott D. Corrigan.

In another sign of the issue’s magnitude, U.S. Attorney Robert Clark Corrente personally argued the government’s side, telling the judge that not even the prosecution could predict what words were going to come out of the mouth of its star witness –– and that the case should go to the jury.

Celona’s “new memories,” as the judge described it, concerned his description of a phone call he says he made to the Rhode Island Ethics Commission early in 2000, when Kramer and Ortiz were about to hire him as a consultant.

In testimony at the Roger Williams Medical Center corruption trial in 2006, Celona said that he had identified CVS as his prospective employer in his conversation with an unidentified person at the Ethics Commission, and reported back to Kramer and Ortiz that the commission had said it would be OK for him to work as a consultant.

But testifying last week, Celona said that he didn’t specifically identify CVS, because he wanted to give himself “some cover” and didn’t want people to think that he was switching his position on legislation to favor CVS because the drugstore company was now paying him. He also said that he only reported back to Ortiz, not Kramer.

The ethics issue is critical because it goes to the state of mind of the two defendants. Their lawyers argue that Ortiz raised the question of ethics and that he and Kramer hired Celona after being reassured by the senator that the Ethics Commission had cleared it. According to Ortiz’s testimony to a Rhode Island grand jury, however, introduced as evidence last week, Ortiz did not follow up with the Ethics Commission himself even though he felt uncomfortable hiring Celona because “it didn’t smell right” and “I didn’t think it was right.”

The defense argued that Celona offered this new version of events to the government earlier this month, when they were prepping Celona for the CVS trial, and that the prosecution never provided this new information to lawyers for Kramer and Ortiz, as they should have.

The government, Corrigan complained to Lisi in oral arguments yesterday, “elicited new memories at trial ... The prosecution readily accepted a gift that was too good to be true.”

Corrente countered that it wasn’t so clear-cut, and called the defense motion “outrageous.” He accused the defense of using “florid language” in an attempt to turn inconsistent statements into perjury and prosecutorial misconduct.

“What am I doing here? Why am I arguing this?” Corrente opened in his remarks before Lisi. “This motion calls into question the actions of my office ... I take that seriously, I don’t take that lightly, but I’m not going to take it lying down.”

Corrente reviewed how Celona’s story about the phone call had changed over time, so it wasn’t fair to say that prosecutors deliberately elicited false testimony.

“We couldn’t be sure until it came out of his mouth what he was going to say,” said Corrente.

Regardless, Corrente argued, what Celona said to the Ethics Commission was a separate conversation from whatever he told Kramer and Ortiz afterward, and therefore not essential to proving that the CVS executives committed a crime by hiring him.

Referring to other corruption trials in this courthouse, Corrente told Lisi that “important witnesses are problematic, they can be questioned for days on end” –– but ultimately, juries have decided to convict based on their testimony.

“The jury may hold Celona against the government,” said Corrente. “Or they might say, ‘The government didn’t put him on the payroll –– CVS did.’ ”

But Lisi was not convinced. While Celona’s conversations with the Ethics Commission and the defendants were separate, the judge said, “the government always presented it as a package.”

Lisi said that it was beyond her “wildest dream” when Celona changed his story during testimony last week that the prosecution knew prior to trial that his account had changed.

“This evidence was known to the government well in advance of the trial,” said Lisi. “It certainly should have been disclosed to the defense.”

By failing to disclose the evidence, whether “deliberately or inadvertently,” said Lisi, “some prejudice has ensued.”

Had defense lawyers known, she said, they could have tailored their opening arguments differently or might have cross-examined Celona differently. However, she cited case law stating that less severe remedies can address the problem.

To remedy the situation, Lisi ruled, the defense could recall Celona, who spent four days on the stand last week, and clarify that “this renewed or new memories” had been disclosed to the government prior to trial. But the defense chose not to.

Last week, Corrigan spent a long time during cross-examination challenging Celona’s differing accounts of the call to the Ethics Commission. Corrigan brought out that Celona had testified at the Roger Williams trial that he identified CVS but that in this trial he hadn’t.

Celona repeatedly responded that he didn’t identify CVS, that it was an “abstract” conversation.

FOLLOWING LISI’S RULING, the defense presented its case –– playing about an hour of videotapes showing Kramer promoting CVS charitable endeavors, mostly on Celona’s television show.

On the first show aired in court, Kramer’s name on the credits was misspelled “Krammer.” Over the years, on frequent appearances, Kramer and Celona chatted about the CVS Charity Classic golf tournament, the CVS Downtown 5K road race in Providence, the CVS Highlander Charter School in Providence and other Rhode Island charities supported by CVS.

The defense argues that Celona was hired to do legitimate work, promoting CVS and its charitable endeavors through his television show and his network of senior citizens in his North Providence Senate district.

Celona was fawning, praising CVS, its chief executive Tom Ryan and Kramer for their efforts on behalf of charity and also Rhode Island’s economic development.

“What you people are doing is fabulous for us,” Celona gushed in one show.

“Rhode Island has been very, very good to us,” said Kramer in another.

Celona talked up where to buy tickets to the golf tournament, joked about using his CVS ExtraCare card for pharmacy discounts and urged viewers, on a holiday show complete with a lopsided snowman in the show’s credits, to shop at CVS since it was Christmastime.

After hearing so much about the “ills” of large corporations, Celona told Kramer, it was refreshing to see a corporate giant like CVS “reaching out” and “giving millions away” to good causes.

On one show, Celona brought up the shortage of pharmacists in Rhode Island and discussed how he tried to address that by championing a student-loan program through the Rhode Island Student Loan Authority, on which he served. The government charges that Celona pushed the program through at the behest of CVS.

“Let me congratulate you on that student loan program,” responded Kramer. Then the two men chuckled over the outstanding public-service announcement that Ryan had done to promote it –– something that prior evidence at the trial showed was Celona’s idea.

On another show, discussing the CVS golf tournament, Celona said to Kramer, “We played that course, didn’t we?” Then the two men joked about how they didn’t get out often enough to golf.

At the start of one show, Celona kidded Kramer that he had been such a frequent guest that “we’re beginning to be like Jerry Lewis and Dean Martin.”

mstanton@projo.com