• The information, sought by Mayor Vincent A. Cianci Jr. and his codefendants, includes lists of documents and potential witnesses.
BY TRACY BRETON
Journal Staff Writer
PROVIDENCE
-- U.S. Magistrate Judge Robert Lovegreen yesterday ordered the prosecution and defense lawyers to turn over lists of witnesses and documents they plan to use in the upcoming trial of Mayor Vincent A. Cianci Jr. and four codefendants so that each side in the corruption case can get a better handle on what the other plans to present to the jury.
Lovegreen gave the lawyers 10 days -- until March 15 -- to turn over the lists to him. If neither side takes an appeal to Ernest C. Torres, the chief judge of the District Court who is presiding over the case, Lovegreen will review the lists and then turn them over to the lawyers in preparation for trial -- now set to begin the week of April 15.
Lovegreen said the witness and documents lists are not binding on any of the parties and that the lawyers are free to add to or subtract from them after they are turned over.
The magistrate judge entered his order after a two-hour hearing on a motion filed by the mayor and his codefendants to get the government to be more specific about what it intends to offer at the trial.
This would not even be an issue if the corruption case had been brought in state court. Since the early 1970s, Rhode Island has had one of the most liberal pretrial discovery rules in the country -- a rule which requires both the prosecution and the defense to exchange, prior to trial, lists of witnesses and their anticipated testimony (except whether a defendant will testify), along with a myriad of other things, including documentary evidence they intend to introduce and whether the defendant intends to present an alibi defense. The state court rule was enacted, the Rhode Island Supreme Court said, to prevent trial by ambush.
Some federal courts in the United States have adopted local rules that also provide for similar exchanges of information before trial -- unless there is a specific objection that a judge determines is valid and merits nondisclosure.
But the U.S. District Court of Rhode Island is not one of them -- and the United States Code does not require federal prosecutors to divulge lists of witnesses or documents they intend to present at trial (though nothing prohibits a judge here from ordering such disclosure to effectuate the orderly administration of justice).
In court yesterday, Assistant U.S. Attorney Richard Rose strenuously objected to turning over such lists for the trial of the case the FBI has dubbed Operation Plunder Dome.
"We have a real concern of witnesses being inappropriately approached or inquired of by third parties unrelated to the litigation," the prosecutor told Lovegreen.
Rose noted that in 1975, Congress specifically rejected a proposal to require federal prosecutors to produce witness lists in criminal cases. Congress, he wrote in a memorandum of law submitted to the court, decided that such disclosure could discourage witnesses from testifying and might lead to "improper contact directed at influencing their testimony."
Rose also says in the memorandum that having to give the defense any more specifics about which documents it intends to introduce against the defendants in the Plunder Dome case would "force the government to disgorge a blueprint of its trial strategy."
But lawyers for the mayor and the other defendants who are scheduled to be tried with him -- his chief of staff, Artin H. Coloian; his former top aide, Frank E. Corrente; Richard E. Autiello, a Providence tow operator and body-shop owner; and convicted felon Edward Voccola, who received a lucrative lease with the city's School Department -- objected to the suggestion of witness tampering. They said that despite the government's assertions, no witness tampering has occurred and they said, they would ensure that it would not happen if a witness list was produced.
"I'd make sure there was no improper contact," C. Leonard O'Brien, Corrente's lawyer, told Lovegreen. He accused Rose of raising the witness-tampering issue as "a smokescreen so as not to respond to a legitimate request for a list of witnesses." (Cianci and Corrente are charged with witness tampering and no-contact orders have already been issued by the court.)
Defense lawyers told Lovegreen they needed the government's witness and documents lists to help them prepare for trial. Prosecutors, they say, are estimating that it will take up to eight weeks to present their case and have swamped them with reams of material that they might use -- but which they haven't identified specifically as things they will use at trial.
"Each morning when I walk into my office at 7:30, I get
agida staring at the number of boxes" lining the walls that the government has turned over, William Murphy, Voccola's lawyer, complained. "We're not asking for a playbook . . . We just want an outline," Murphy said.
Rose told Lovegreen that the defense hasn't exactly been forthcoming about the case it plans to present. "We haven't received nary a piece of paper" from them, the prosecutor said. He asserted that the government shouldn't be required to turn over things that the defense isn't required to produce.
Lovegreen said he felt it in the best interest of both sides that they exchange witness and documents lists. Doing so, he said, might make for a smoother and faster trial of the 29-count case.
After they submit their lists, the parties can drop or add a witness or document. But, he told the lawyers, "I expect each side to act in good faith and I assume they will."
