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Judge hears motions before start of Oster trial

01:00 AM EST on Tuesday, December 4, 2007

By John Hill

Journal Staff Writer

PROVIDENCE — With the start of former Lincoln town administrator Jonathan Oster’s bribery and conspiracy trial set to start just about a month from now, lawyers for the prosecution and the defense spent last week before the trial judge, hammering out what will and won’t be allowed into evidence.

The motions argued before Superior Court Associate Justice Gilbert V. Indeglia were procedural, but as the lawyers debated their pros and cons, rough outlines of both sides’ arguments in the five-year-old case began to emerge.

Pre-trial motions are intended as the last bit of packing before taking the trip to trial. The judge and lawyers for both sides set the outlines of where the case will be going and what kind of evidence each side can use. There is still a major hearing next week at which the defense will try to have evidence seized from Oster’s law office thrown out.

Oster, who was Lincoln town administrator from 2000 to 2002, is facing two counts of bribery and two counts of conspiracy to commit bribery. He was arrested in February 2002 along with then-Planning Board member Robert R. Picerno.

The cases were separated and Picerno pleaded no contest to four counts of soliciting bribes and three of conspiracy to solicit bribes, and in 2004 was sentenced to three years at the Adult Correctional Institutions.

Part of the defense strategy has been to attack the credibility of Picerno even before the trial has started. Oster’s lawyer, C. Leonard O’Brien, has called Picerno a liar at more than one pre-trial hearing and last week used a disclosure request to try to further tarnish the reputation of what he called the state’s “core witness.”

He asked the judge to order the state to specify what Picerno would be testifying to during the trial, saying Picerno had given differing accounts of some events in police interviews and during other hearings.

“What is he going to say, that’s all I’m asking,” O’Brien said. “I just want him to choose among the things.”

Prosecutor Bethany Macktaz responded that the state had provided Oster with copies of all of Picerno’s statements and testimony and that was all it was obliged to give under the terms of a state Supreme Court decision on the disclosure rules that apply to Oster’s trial.

She read a passage from the high court’s ruling that said “the state may not be directed to specify the document or tape recording upon which the anticipated testimony is based nor is it required to designate the portion of any statements or prior testimony that state intends to use at trial.”

Indeglia said that settled it.

“Doesn’t that answer the question,” he said. “I don’t know how much clearer the order could have been.”

Another preview of coming attractions came during discussion of expert witnesses who might be called in the trial. O’Brien wanted specific ground rules set for the admission of testimony concerning the value of the old H&H Screw property on Route 116. The now-vacant industrial site is the focus of one of the charges in the Oster indictment. Oster had pressed the Town Council to sell the land for about $105,000. The state claims Oster and Picerno solicited bribes to sell the land for a bargain price.

O’Brien wanted to know how the state would establish the land’s value. If it was a developable industrial site, it could be worth $1 million or more. But, O’Brien said, concerns about chemicals that were dumped there over the decades mean it could cost hundreds of thousands of dollars or more to clean up. If the cleanup cost was more than the value of the land, he said that could mean the property was worthless and $105,000 might be a good deal.

But the value of the H&H Screw land has been vexing the town to this day. Fears that the cost of cleaning it up could be high have scared away most bidders; even the Town of Lincoln has refused to take title to it for fear of being hit with the cleanup bill.

Assistant Attorney General William Ferland said the state was offering no expert testimony about the value of the land. But he said he intended to call witnesses, including the people who supposedly paid Picerno and Oster the bribes, as to what they believed the land was worth. If a potential buyer believed he was paying a little to get something valuable, Ferland said that perception of value was relevant, whether it came from a appraisal expert or not.

“To the casual observer, that property is a prime piece of real estate,” Fernald said.

“If people in the community, town employees, believe this property is worth such and such, that’s important,” he added.

O’Brien objected to any suggestion that the town tax assessor be allowed to testify as to its value. The town’s appraisal for tax purposes — about $2.1 million in the last revaluation — does not consider the pollution cleanup in its assessment and would mislead the jury, he said.

Indeglia ruled that the appraisal figure could be introduced, since it was a statistical starting point for any calculation of value. But he added that O’Brien was free to present evidence that made that point.

“As the basis for value calculations, it has some relevance,” the judge said. “I don’t see it as unfair.”

jhill@projo.com