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SEEKING EVIDENCE: Robert Popeo, one of the two lawyers leading the defense of the DiPretes, demanded documents that, he said, the prosecutors had withheld from the DiPrete team.
Journal file photo/STEVE SZYDLOWSKI
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THE SEVEN LAWYERS rose as Superior Court Judge Dominic F. Cresto strode from his chambers into Courtroom 7.
The three prosecutors and four defense lawyers had come to the Licht Judicial Complex for a routine pretrial hearing in the State vs. DiPrete.
Awaiting Judge Cresto on this morning of Aug. 24, 1995, were several motions concerning discovery -- the customary pretrial exchange of information between prosecution and defense.
R. Robert Popeo, the lawyer for Dennis L. DiPrete, addressed the judge: "As Your Honor would expect, the discovery motions are meant to set the stage . . . for the type of evidence that will be admitted at trial."
Despite all the material that the state had given the lawyers for former Gov. Edward D. DiPrete and his son Dennis -- 600 cartons of documents, 200 volumes of grand-jury testimony -- Popeo said that it wasn't enough. He demanded all exculpatory evidence: information that could support the innocence of the DiPretes, who had been charged with several counts of public corruption and perjury.
Exculpatory evidence included evidence of any crimes committed by the state's witnesses, and any contradictory statements that might have been made to the authorities that would cast doubt on the witnesses' testimony.
The DiPrete lawyers also wanted to know of any "promises, rewards, or inducements" that prosecutors had offered their star witnesses.
Under Rhode Island's rules of criminal procedure -- among the country's most liberal -- prosecutors are required to produce this information to ensure a fair trial.
Robert Popeo told Judge Cresto that he thought there was additional information that the state had not produced.
"We feel a great deal of discomfort," said Popeo, "not because we think the government is hiding anything; it's carelessness."
Judge Cresto turned his stern-headmaster's eyes to the prosecutors' table.
"Who will respond for the state?" he asked.
Bruce Astrachan, a gangly young man with curly dark hair, stood up. He had just joined the case, after the resignation, in May, of the original DiPrete prosecutor, J. Richard Ratcliffe.
The DiPrete lawyers, said Astrachan, "have the testimony of all the conspirators. They have all the documents relied on in the testimony, and there should be no surprise to them as to what may come out at trial, Your Honor."
Astrachan continued: "I'm not sure what the court could order the state to deliver to them, in that they have everything."
Popeo persisted. The state had dumped 600 boxes of evidence on the DiPretes' lawyers, he said, leaving them to find "a needle in a haystack."
"If the government knows where it is," said Popeo, "they should tell us, not play games."
Joseph L. DeCaporale Jr., one of the prosecutors, responded.
"It's there," he said. "I mean, do we need to chronicle it for them? . . . I don't understand the extent to which Mr. Popeo feels as though the government has an obligation to set a blueprint for his defense."
Judge Cresto determined that it should not be left to the DiPrete lawyers to go through every scrap of the state's evidence for relevant information; he assigned the prosecutors the task of extracting the needles from the haystack.
DeCaporale assured Judge Cresto that the DiPrete lawyers had everything.
The judge told DeCaporale that the prosecutors should continue to comply with his order. "Something might pop out of those boxes," he said. "You can never tell."
Echoed DeCaporale: "You can never tell."
To him, Robert Popeo's carping over discovery was hot air. It was a classic defense lawyer's ploy to divert attention from overwhelming evidence against a client. Popeo and Richard M. Egbert, the lawyer for Edward DiPrete, were clearly aiming to transform the trial into a sideshow.
WHEN RICHARD RATCLIFFE had resigned, back in May of 1995, an opening for the third seat in the DiPrete case was posted within the attorney general's office. There were few takers. The discovery would be demanding, the trial would be grueling, and the third prosecutor would get the grunt work.
But Bruce Astrachan applied. A 1990 law-school graduate, son of a rabbi, Astrachan had been a criminal prosecutor for a year before joining the DiPrete-prosecution team. He had previously handled mostly smaller cases -- shoplifting, drugs, assaults, a grave desecration.
In August 1995, a few months after applying for the third seat on the DiPrete case, Astrachan stood before Judge Cresto and vouched that the prosecutors had turned everything over to the DiPrete lawyers.
Again and again in the following months, the young prosecutor would sign his name to court documents swearing that the DiPretes had everything.
Astrachan would later testify that, lacking the time to master the case, he had relied on the judgment of his superiors, Joseph DeCaporale and Michael Burns.
SHORTLY AFTER the August 1995 hearing before Judge Cresto, prosecutors Michael Burns, Joseph DeCaporale, and Bruce Astrachan gathered in a conference room at the state-police Financial Crimes unit, where the DiPrete-case records were stored.
Gina Merandi, a state-police employee in charge of the records, would later testify that she had hauled in 10 cardboard boxes for the three prosecutors to review. The boxes contained the work files of the original DiPrete investigators.
At the August hearing, Astrachan had argued that witness statements taken by a prosecutor or investigator were "work product" and therefore did not have to be turned over to the defense lawyers. Work product is defined as notes and memos reflecting a prosecutor's thoughts or legal strategies, to which the defense in a case is not entitled.
Judge Cresto ordered the prosecutors to give him the investigators' files. The judge would review them and determine what the DiPrete team could have.
At the state-police Financial Crimes unit, the prosecutors spent most of the day going through the 10 boxes of work files and pulling out what they thought they had to give to Judge Cresto to review.
Burns, who would later testify that he had been busy with another matter, said that he was in the room only briefly, leaving the bulk of the work to DeCaporale and Astrachan.
Gina Merandi later recalled that the prosecutors reviewed documents that contained damaging information about the state's star witness, former DiPrete confidant Rodney M. Brusini.
The information could be dynamite in the hands of the DiPrete lawyers, enabling them to attack inconsistencies in Brusini's story and to argue that he had agreed to testify against Edward DiPrete to avoid a perjury charge.
Merandi recalled in later court testimony that as the prosecutors went through the boxes, culling items for Judge Cresto, they repeatedly said that they did not have to turn over various this because of the work-product privilege.
When they had finished, many documents remained that would not be turned over. Among them were files concerning Brusini -- including information bearing on whether he had committed perjury.
MICHAEL BURNS was the point man regarding Rodney Brusini. As the prosecutor who would question him at trial, Burns should have been familiar with the state's files on the former DiPrete adviser.
But Burns had a lot on his mind that summer of 1995.
His new job as chief of the attorney general's criminal division pulled Burns in several directions. And he was going through a painful, public breakup with his wife, Patricia Nugent Burns, an aide in the attorney general's office.
On May 18, 1995, Patricia Burns had called 911 from the Burnses' home, in Johnston, sobbing that her husband had "beat on me"; her 5-year-old son could be heard screaming, "I just wanna get out of here." Patricia Burns said that her husband had left but that she was afraid he'd return.
She told a Johnston police officer that Burns had slapped her in the face. The officer reported that he was unable to obtain a detailed statement, owing to Patricia Burns's "intoxicated state and mood changes."
The Johnston police dropped the case after Patricia Burns declined to cooperate. Friends of Michael Burns said that the allegations were untrue. A month after the 911 call, 10 months after they had married, Michael Burns filed for divorce.
The 911 call resulted in no criminal charges against Michael Burns, but the incident proved highly embarrassing for him when a local television station played the tape of the phone call. Burns refused comment, saying the incident was a personal matter.
For much of his life, Burns had been married to his work as a prosecutor; now, single again and faced with the demands of running the attorney general's criminal division, as well as prosecuting the DiPretes, Burns became, according to friends, a whirlwind.
Long days at the office and in the courthouse were followed by late nights at bars or sporting events. He frequented the bar at the Metacomet Country Club, in East Providence; sometimes, after he had drunk a great deal, Burns would crash on the couch of a friend who lived nearby.
He was 37 years old, at the height of his career.
THE PRIMARY RESPONSIBILITY for complying with Judge Cresto's orders to turn over evidence to the DiPretes fell on prosecutor Joseph DeCaporale.
DeCaporale had other experience tangling with defense lawyers over the disclosure of evidence.
In September 1995, real-estate developer James Procaccianti and his uncle faced charges of having defrauded the by-then defunct Marquette Credit Union of more than $500,000 in loan money.
DeCaporale had obtained the indictments after another prosecutor had determined that there was no case; the other prosecutor, Steven Murray, had decided not to seek charges after a Marquette loan officer made statements that could have absolved Procaccianti.
After the indictments, the Procaccianti lawyers filed motions for discovery, requesting the prosecution's notes and memos. DeCaporale turned over some documents, but failed to turn over Murray's notes on his interview with the loan officer.
The Procaccianti lawyers sent out their own investigators, who learned of the loan officer's statements to Murray. The lawyers then filed more motions for discovery. But DeCaporale insisted that he had turned over everything.
One of the lawyers then called Murray, who no longer worked for the attorney general, and asked him why his notes had not been produced. Murray said that for months he had been telling DeCaporale to turn the notes over.
Finally, after the Procaccianti lawyers had filed yet another motion, asking the court to compel the state to provide material, DeCaporale produced the notes. The Procaccianti lawyers then listed Murray as a potential defense witness for the trial.
When the case came to trial, in September 1995, the judge dismissed the charges for lack of evidence.
Procaccianti's lead defense lawyer was becoming a familiar face to prosecutor DeCaporale. He was Edward DiPrete's lawyer, Richard Egbert.
RICHARD EGBERT smelled a rat.
He focused on Rodney Brusini, the state's star witness against Edward DiPrete.
Brusini, the former DiPrete confidant, was the only witness to say that he had delivered kickbacks directly to the ex-governor. Brusini's credibility was therefore central to the state's case.
But Egbert had begun to suspect that the state wasn't showing all of its cards concerning Brusini.
Through private investigators' digging into Brusini's business dealings, Egbert concluded that Brusini had pocketed the alleged kickback money; then, with the police closing in, Brusini had implicated DiPrete to save himself.
The prosecutors had given Egbert statements made by Brusini in 1992 and 1994, but none from 1993. Egbert wondered about the gap: what else might be missing?
Meanwhile, Egbert's colleague on the defense team, Robert Popeo, was digging into the background of a key witness against his client, Dennis DiPrete -- Frank N. Zaino.
Popeo hoped to argue that Zaino, the engineer and DiPrete fundraiser, had kept the kickback money he claimed to have given Dennis DiPrete. It was time, Popeo told his staff, to take Zaino on "a shakedown cruise."
Popeo said that Zaino, like Brusini, seemed guilty of, at the very least, conspicuous consumption. Popeo zeroed in on Zaino's trips to the Bahamas, his condominium on the Carribean island of St. Maarten, his high-performance cars. Popeo found too that the married Zaino, also like Brusini, had spent money on a younger woman who was not his wife.
"What is it about all these married guys with girlfriends down there?" said Popeo, referring to Rhode Island.
Popeo was especially intrigued by $150,000 that Zaino had kept in banks in St. Maarten and Florida. Zaino told the prosecutors that he had won the money gambling, but Popeo said that his private investigators could find no such evidence -- not at casinos at Foxwoods, Atlantic City, or Las Vegas; not at racetracks throughout New England; not even with underworld bookies.
FOR ALL the information uncovered by the DiPrete-defense team, Robert Popeo still had concerns in early 1996 as the trial approached.
The defense lawyers had collected material that could be used to discredit the prosecutors' key witnesses, but they had found nothing that would destroy the state's case. There was still substantial evidence against the DiPretes.
Popeo saw it as a "jump ball" -- anyone's guess as to whether a jury would convict or acquit. Consequently, he resolved that Dennis DiPrete should testify. By confronting the charges head on, Popeo believed, the DiPrete team had the best hope of winning over the jury.
His colleague, Richard Egbert, was leaning toward putting his client, Edward DiPrete, on the stand, too.
Then, on the eve of the trial, in May 1996, the prosecutors gave the DiPrete lawyers some documents that they said they had just found -- including previously undisclosed statements from Brusini and Zaino. (The prosecutors would later point to their provision of this material to underscore their contention that they had not deliberately withheld evidence.)
Popeo and Egbert promptly filed another motion for discovery. This was material they should have been given the year before, they argued, just as Judge Cresto had ordered.
The state then produced still more previously undisclosed material.
Nevertheless, the state had yet to turn over any documents reflecting its agreement to give Rodney Brusini immunity from charges of perjury.
Once again, prosecutor Bruce Astrachan insisted that the DiPrete lawyers now had everything.
TEMPERS BOILED OVER in a conference call on July 25, 1996.
In Boston, Robert Popeo, Richard Egbert, and a half-dozen other lawyers huddled around a speaker phone. In Providence, on the other end of the line, were Michael Burns, Joseph DeCaporale, Bruce Astrachan, and other members of the prosecution team.
Popeo accused the prosecutors of still withholding discovery material. DeCaporale replied that it was privileged material -- the DiPrete lawyers were not entitled to it.
"I'm going in for full compliance," Popeo shouted, alluding to Judge Cresto's order to furnish all discovery material.
The DiPrete lawyers got Judge Cresto on the line, and he ordered any remaining prosecution files sent to his chambers, so he could decide whether they should be shared with the defense.
Twenty minutes later, DeCaporale called Popeo back and said that Popeo and the other DiPrete lawyers could come directly to the attorney general's office and go through "everything." He said it was five or six boxes' worth.
After this phone call, the state-police custodian of the records, Gina Merandi, corrected DeCaporale: It was more like 30 boxes.
When, a few days later, lawyers from Popeo's firm walked into the attorney general's office, they said they were astounded. The boxes contained 68,000 pages of documents; just to copy them would cost $20,000. One of the lawyers telephoned Popeo, in Boston.
"Don't let those boxes out of your sight," he commanded.
That August of 1996, Robert Popeo and Richard Egbert asked Judge Cresto to throw the whole case out. They cited prosecutorial misconduct.
During a contentious court hearing, prosecutor DeCaporale dismissed the lawyers' accusations as the ravings of "two spin doctors throwing a bunch of baloney."
Joseph DeCaporale went on preparing for the historic trial of a former governor. He bought himself an expensive suit -- for the television cameras. Live, gavel-to-gavel coverage was planned.
It promised to be quite a show.
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