When should someone convicted of a federal crime be able to register as a state lobbyist on Beacon Hill?

After a summer recess, the Supreme Judicial Court, the state's highest court, will again hear cases that could change the legal landscape in the commonwealth. GBH News legal analyst and Northeastern University law professor Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel to talk about some cases that caught his eye: A powerful politician who wanted to become a lobbyist when he got out of federal prison and a prosecutor whose impassioned closing arguments in a murder trial may have gone too far. This transcript has been lightly edited.

Jeremy Siegel: September is a busy month for the SJC. Daniel, tell us about some of the cases that have caught your eye.

Daniel Medwed: September is when things really heat up at the John Adams courthouse in downtown Boston because the SJC resumes hearing oral arguments in appeals after a pretty lengthy summer break. So a couple of cases caught my eye from this month's calendar, most notably an appeal involving a disgraced former Massachusetts speaker of the House: Sal DiMasi. DiMasi resigned under a cloud of corruption allegations and in 2011, he was convicted of several federal crimes related to an alleged pay for play scheme where he got $65,000 in exchange for steering huge amounts, millions of dollars in state contracts, to a Burlington software company.

So nine years later, in 2020, DiMasi was out of prison, he was out on compassionate release because of his health, and he sought to register to become a state lobbyist. So the issue in this case, the legal issue, is when, if ever may someone who was convicted of a federal crime register as a state lobbyist on Beacon Hill?

Paris Alston: Is there a law about that, Daniel? I mean, it seems like this is something that would have come up before.

Medwed: Absolutely. So on the one hand, yes, there is a law on the books that specifies that someone convicted of a state crime has to wait 10 years before registering as a lobbyist. And our secretary of state, William Galvin, interpreted that that law to bar DiMasi from registering because he was one year too early. He had to wait another year because he's only been out nine years. On the other hand, the law specifies only state crimes, and there's no reference at all to federal crimes. So DiMasi said, Hey, I was convicted of a federal crime, not a state crime. This 10-year barrier shouldn't apply to me. And he convinced a state court judge that he was right.

Galvin then appealed it to the SJC, and that's where we are. So the legal issue in the SJC is one that a lot of lawyers call a matter of statutory interpretation. The fact that a law is silent, does that mean rejection, that a state law only refers to state crimes? Does that mean by definition it was excluding federal crimes? Or should silence mean the acceptance of general principles? The policy goal behind this law was to basically delay people in registering a state lobbyists after they've been convicted. Wouldn't that same policy apply, irrespective of whether it was a state or a federal crime? In other words, should we follow the letter of the law, a narrow view of it, or perhaps the spirit of the law, sort of a broader interpretation?

Siegel: This case is kind of fascinating because it feels like a new rule almost could come out of it in a way. Any thoughts on how this will turn out?

Medwed: That's an interesting dilemma, I think. My hunch is that the SJC will go in favor of the narrow interpretation, the strict version of the law, and here's why. So for one thing, the term 'crimes' in the law didn't have to be modified by anything at all. It could have just been someone who was convicted of a crime has to wait 10 years to register as a lobbyist. The fact that the legislature included the word 'state' before 'crime' is a pretty strong signal of its intent to limit this to just state crimes. For another thing, judges are usually not in the business of encroaching on the turf of lawmakers and reading a word into a statute that doesn't exist.

There is a concept in law, especially in criminal law, known as the rule of lenity, or leniency, if the law is ambiguous or unclear, courts tend to interpret it in a way that helps the defendant, that helps individual liberty interests. So I think DiMasi is probably going to win in the end.

Alston: But either way, it won't affect him, right? Because it's been more than 10 years since he was federally convicted, and presumably, he would now be eligible to serve as a lobbyist.

Medwed: Well, that's exactly right. If my math is correct, I think it's been 11 years since his conviction. So the 10-year bar wouldn't apply to him at all. So in legalese, the case is moot. That's the legal term with respect to DiMasi.

Siegel: So then why does the SJC take this case in the first place?

Medwed: I think the reason is not about DiMasi per se, but it's about the fact that this is likely to recur again. Given our history of occasional lawmakers getting into trouble with the feds, you know, it's possible to re-occur. And I imagine the SJC wants to clarify the law or at least motivate the legislature to amend it in a way that's perhaps a little stronger.

Alston: So, Daniel, we have a little more time here to talk about another case. Is there anything else that's catching your eye on the docket this month?

Medwed: Yes. So another one that grabbed my attention relates to a highly publicized murder that occurred in a high end condominium in South Boston a couple of years ago. A two doctors who were engaged to marry each other were found dead. And a former concierge in the building was accused of the crime. His name was Bampumim Teixeira. The case went to trial, and Teixeira convicted of murder in 2019.

His lawyers have appealed that conviction and that's what's pending in the SJC this month. Among the claims raised by the defense lawyers is that the prosecutors committed misconduct during closing argument, their final argument to the jury, when they said the following: "Now engaged for eternity, Lina will forever be Richard's fiancee, but never his bride. And why? Because of this man and his ill-conceived plan."

Siegel: Are prosecutors allowed to say things like that to sort of make a blatant effort to pull on the jury's heartstrings?

Medwed: Generally not. Prosecutors may not appeal to passion or prejudice, or elicit emotion, for fear that it will distract the jury from making a logical or rational decision. So this is probably an error, but there are other barriers to overcoming it. First, the trial lawyer never objected to this statement at the time, which means it might not be what's called preserved for review on appeal.

It might not be recognizable. Second, there's a doctrine known as harmless error, which says even if there's an error in the case, it might not be enough to actually reverse the conviction given all of the other evidence of guilt. So that could also come into play here.