A protracted life-and-death struggle continues to be played out in the tastefully-appointed, clean, well-lighted courtroom of United States District Judge Mark L. Wolf,located in the impressive waterfront federal courthouse that we criminal defense lawyers have long-dubbed “the house of pain.” Judge Wolf is returning his attention to the fate of former Massachusetts House Speaker Salvatore “Sal” DiMasi, in a long-running drama that will determine whether the 2011 corruption conviction that landed DiMasi in prison to serve an eight-year sentence will turn out to be, in effect, a life sentence, given DiMasi’s diagnosis and inadequate in-prison medical treatment for cancer of the tongue, prostate and esophagus and related ailments.
Since DiMasi was diagnosed with this aggressive form of cancer in April 2012, his family, led by his indefatigable wife Deborah (herself suffering from cancer), have been pleading with the office of United States Attorney Carmen Ortiz to join in petitioning Judge Wolf to terminate DiMasi’s incarceration so that he might return home, seek medical care of his choosing, and be with his loved ones for his remaining days. Ortiz’ assent to such a petition to Wolf would be necessary under federal law that requires the government’s assent so that a judge, this late in the game, can exercise his discretion to modify the sentence that he earlier imposed. Ortiz and her staffers, until now, have adamantly refused to facilitate DiMasi’s early release, without which he would face a release date of November 17, 2018, which he very likely would not live to see.
DiMasi’s recently expanded legal team—including Wolf’s former colleague, now retired federal judge and a professor at Harvard Law School Nancy Gertner; the former ACLU lawyer John Reinstein; DiMasi’s long-time lawyer Thomas Kiley; and criminal defense lawyer Charles Rankin—managed, at long last, to secure Ortiz’ assent, and they filed a petition on October 13 asking Wolf to order DiMasi’s early release from the federal prison at Butner, North Carolina, where he currently inhabits a medical ward. His medical condition is stark: the cancer spread from his tongue to his throat, causing damage to his esophagus, resulting in swallowing problems, frequent choking, and requiring regular stretching of his esophagus. Simply eating a meal is an elaborate, bordering on ghastly undertaking.
Judge Wolf’s initial reaction to the petition was to question DiMasi’s securing such high-powered legal assistance, including the assent of the notoriously hard-nosed U. S. Attorney. He issued an interim eight-page order on October 16th suggesting his concern that one might see DiMasi, the most powerful state official during his speakership and still the beneficiary of considerable support as well as sympathy, as getting special treatment. Wolf noted that many less well-connected federal prisoners with serious illnesses remain in prison with few of them ever benefitting from the so-called “compassionate release” program under which DiMasi’s request was brought. “The question,” Judge Wolf suggested that he wants the parties to answer, is “whether a reduction of sentence would reasonably be viewed as a form of unwarranted disparity based on power or privilege, which would injure respect for the law, a relevant…factor the court is required to consider.”
Wolf, in suggesting the possibility (or at least the appearance) that the former Speaker was being given special treatment, demonstrates that he failed to read my March 7, 2013 “Freedom Watch” column in The Boston Phoenix bearing the headline “DiMasi Agonistes and the Federal ‘Justice’ System: Enhanced Cooperation.” In that column, I reported, in the context of controversial revelations of federal officials’ engaging in water-boarding and other forms of torture of captives in the “war on terror” launched after the terrorist attacks of September 11, 2001, that federal prosecutors were engaged in veritable torture of DiMasi in an effort – futile in the end – to get him to confirm their suspicion, or more likely their imagined scenario, as to who else on Beacon Hill might qualify for the feds’ targeting for prosecution in the Probation Department patronage scandal.
In order to induce DiMasi, in the immortal phrase attributed to retired Harvard Law professor Alan Dershowitz, to “not only sing but also to compose,” the feds transported him on a 900-mile voyage from his prison cell in Lexington, Kentucky, to a federal grand jury sitting in Worcester. (At the end of the voyage north, he was housed at a holding facility in Central Falls, Rhode Island.) He had been imprisoned in Kentucky despite requests by his family, seconded by Judge Wolf at the sentencing hearing, that he be housed instead at the Bureau of Prisons prison hospital at Fort Devens in Ayer, Massachusetts, where he could be treated for a heart condition and where his wife, who was being treated for cancer at the time, could visit him.
Before leaving Kentucky via prison van (he would have been comfortably flown to Massachusetts had he agreed to “cooperate”), DiMasi had requested that the authorities in Kentucky allow him to see a physician because he’d discovered lumps in his neck. In January 2012, a prison doctor examined him, pronounced the lumps potentially cancerous, and indicated that further tests would be required. Rather than undergo the tests then and there, DiMasi was put on the bus to begin the long and difficult trek to Worcester, stopping at myriad local jails and holding facilities along the way. It was only upon his return to Kentucky that he began the series of tests that discovered the fact that he was suffering from a by-then advanced case of an aggressive form of cancer for which drastic medical and surgical measures were required, including surgery, radiation on his tongue, ten weeks of chemotherapy, and stretching of the esophagus.
In my Phoenix column, I suggested that the federal prosecutors’ treatment of DiMasi arguably constituted multiple violations of federal law. A criminal investigation would reveal whether DiMasi was deprived of his civil rights and whether the prosecutors and Bureau of Prisons officials violated the Eighth Amendment’s prohibition against cruel and unusual punishments in seeking to force DiMasi to tell them the story that they wanted to hear. The evidence presently available certainly supports claims that prosecutors intentionally mistreated the former Speaker and perhaps sought to obstruct justice.
I concluded then, as I do now, that “DiMasi may be just the latest victim of a ‘justice’ system that threatens to brutalize the sensibilities of our entire society and make truth a dispensable commodity.” More particularly, I suggested in the Phoenix, as I do once again in this new space:
Such deliberate denial of life-saving medical intervention likely would be deemed violative of the Eighth Amendment’s prohibition against cruel and unusual punishments, as well as federal statutes outlawing corrupt or extremely coercive practices used to extract testimony. (The likelihood that such testimony poses a high risk of being false adds yet another layer to the potential lawlessness of such tactics.) Yet the feds, emboldened by the apparent indifference of the courts, and by the blithe attitude of much of the press and public toward the plight of prisoners (particularly those dubbed “corrupt pols”), seemingly have begun to more broadly apply the aggressive tactics they learned (and justified, at least to themselves) during the war on terror.
I do not believe that Judge Wolf should worry about DiMasi being given special treatment. He should promptly terminate DiMasi’s sentence and demonstrate that, at least in some extreme circumstances, the federal criminal justice system is capable of performing in a civilized manner.
Harvey Silverglate is a lawyer, and the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent [Encounter Books, 2nd edition 2011]. He is at work on a sequel tentatively titled Conviction Machine. He practices law in an “of counsel” capacity at the Boston law firm Zalkind, Duncan & Bernstein, LLP.
Silverglate adds: When the fabled Boston Phoenix suddenly folded in 2013 as a result of the inexorable challenges facing print media in the age of the Internet, I necessarily terminated my long-running “Freedom Watch” feature in which over three decades I chronicled, explained and analyzed criminal justice and civil liberties outrages perpetrated by official power upon often defenseless, but in any case weaker and highly vulnerable, individuals. When the executive editor of the Phoenix, my friend and long-time collaborator Peter Kadzis, landed as Senior Editor at WGBH/News, I vowed that someday I would reprise the Freedom Watch feature on-line under Kadzis’ editorship. The press of my professional life delayed my return to writing uncensored disquisitions about the injustices perpetrated under the guise of “law enforcement,” as well as by other centers of power – the tyrannies of university administrators likewise come to mind. That delay ends with this inaugural column.