DRISCOLL

PROVIDENCE –– The corruption case against former Roger Williams Medical Center executives Robert Urciuoli and Frances Driscoll is receiving a makeover in federal court –– including the extraction of the prosecution’s discredited star witness, John Celona.

The contours of a second trial, scheduled for September, began to emerge yesterday during a hearing in federal court as prosecutors agreed to retool the indictment to reflect recent events and defense lawyers continued trying to chip away at other parts of the case they argue don’t belong.

Urciuoli, the former president of Roger Williams, and Driscoll, a former vice president, were convicted in October 2006 of stealing the honest services of Celona, a longtime state senator from North Providence, by hiring him as a consultant and paying him more than $260,000 from 1998 to 2004. Urciuoli was convicted of one count of conspiracy and 35 counts of mail fraud. Driscoll was acquitted of conspiracy but convicted of a single count of mail fraud.

But in January, the 1st Circuit Court of Appeals in Boston overturned the convictions and ordered a new trial, ruling that the judge, Ernest C. Torres, had improperly instructed the jury on one aspect of the case.

Their second trial will unfold in a new legal landscape, shaped by the appeals court decision in their case and the recent acquittal of two former CVS executives who were also charged with stealing Celona’s honest services.

Celona, the government’s star witness in the first Roger Williams trial, has been so discredited that prosecutors say they don’t intend to call him to testify. Instead, they are asking defense lawyers to agree to the introduction of certain documents, including faxes between Celona and the defendants regarding his State House efforts on their behalf.

After the 2006 trial, one juror told The Providence Journal that jurors had concerns about Celona’s credibility, but decided to convict based on the paper trail documenting Celona’s political efforts on Roger Williams’ behalf.

Celona’s lies and inconsistencies were further highlighted by defense lawyers in the trial of former CVS executives John Kramer and Carlos Ortiz, who likewise were charged with hiring Celona as a consultant, ostensibly to promote the company among the elderly but in actuality to push its political agenda.

“The elimination of Mr. Celona as a witness has ramifications for what this trial will look like,” Chief U.S. District Judge Mary M. Lisi said during yesterday’s hearing.

Defense lawyers argue that the documents alone are insufficient to convict Urciuoli and Driscoll, especially since Rhode Island ethics law permits a part-time “citizen legislator” to work for a company and even communicate with his or her employers regarding certain legislation.

But the prosecution counters that this is a case of “quid pro quo bribery.”

Guided by the appellate decision ordering a new trial for Urciuoli and Driscoll, Lisi instructed jurors in the CVS case that they must consider Rhode Island ethics law and the citizen legislator. That, combined with Celona’s lack of credibility, led the jurors to swiftly acquit the CVS executives.

“After the CVS trial, these faxes [between Celona and Roger Williams executives] can no longer carry the government’s case,” the defense argues in court papers.

The government counters that the appellate decision only questioned the judge’s instructions regarding one aspect of Celona’s efforts for Roger Williams –– his intervention with local officials to help steer more ambulance runs to Roger Williams. While that part of the indictment will be removed, Lisi has yet to rule whether the government can still introduce evidence regarding the ambulance runs to help prove the defendants’ intentions in hiring Celona.

That leaves the charges that Celona improperly acted on legislative matters, and that he used his position as a powerful Senate committee chairman to arrange State House meetings between Urciuoli and health insurers whom the hospital claimed owed it hundreds of thousands of dollars in reimbursements for health care.

The defense has sought to have those charges thrown out, though Lisi did not do so yesterday. The prosecution has agreed to strike certain portions of the indictment, including references to Rhode Island ethics law, but objects to removing other sections sought by the defense. A motion by Driscoll, prosecutors complain in court papers, “in essence” seeks the removal of “all factual allegations against her.”

John A. MacFadyen, a lawyer for Urciuoli, asked Lisi to instruct the jury at the outset of the case regarding Rhode Island ethics law and the citizen legislator, arguing that it goes to the heart of the government’s case. But Lisi declined to do so, noting that the prosecution has changed its theory to one of “quid pro quo bribery.”

Lisi denied Urciuoli’s motion seeking a hearing into his claim that Roger Williams improperly fired him and cut off his legal fees under pressure from prosecutors, which the government denies. The hospital signed a deferred prosecution agreement in January 2006, admitting to “criminal misconduct” by hiring Celona and promising internal reforms plus $4 million in free health care to the poor.

The judge also denied Driscoll’s motion for a separate trial. Although Driscoll was acquitted of conspiracy in the first trial, and cannot be retried on that charge, she was convicted of a single count of honest-services mail fraud.

MacFadyen voiced concern that the jury will confuse the elements of conspiracy, with which Urciuoli is still charged, and mail fraud, to Driscoll’s detriment. But Lisi said that she could address that through jury instructions.

Jury selection is scheduled to begin Sept. 3, with opening arguments set for Sept. 8.

mstanton@projo.com