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State v. Diprete5/1/1998
ut exception, been untruthful. The defendants here should not be compelled to walk blindfolded into battle and risk yet another ambush by the prosecution.
I referred earlier to the case record disclosing that for a period in excess of two and one-half years the state's prosecutors had played "hide-and-seek" with the defendants' Rule 16 discovery requests and as well with the trial Justice's pretrial discovery orders. In support of that assertion, I submit now as examples just two of the nefarious machinations by various members of the state's prosecutorial team with key state's trial witnesses, Rodney M. Brusini and Frank N. Zaino.
Brusini had testified in March 1992 before a grand jury investigating Joseph Mollicone, Jr. (Mollicone), of Heritage Loan and Investment Company fame. In that grand jury proceeding he testified under oath that he had no ownership interest in a property known as the Rosemac Building located in Providence. At the time Brusini so testified, the state's prosecutors were then in possession of clear evidence establishing that Brusini in fact co-owned the building with Mollicone. In August 1992, some five months later, and while the state was attempting to build its case of criminal wrongdoing against the DiPretes, the state, knowing full well that Brusini could be a key witness against the DiPretes, presented evidence to a new grand jury in an effort to indict Brusini for his past-known perjury. That grand jury proceeding was suddenly halted, but only after Brusini agreed to testify for the prosecution against the defendants. In exchange, the state agreed not to further pursue the perjury charges arising from Brusini's prior grand jury testimony regarding his ownership interest in the Rosemac Building. That deal is evidenced by the sworn testimony of both former and present members of the prosecution team as well as that of Brusini's own attorney.
Despite those known facts the state continued to repeatedly represent to both the court and to defense counsel that it had no knowledge of Brusini's having ever committed perjury or of any agreement made by the state with Brusini not to pursue perjury charges against him in exchange for his testimony against the defendants. Even when specifically ordered by the trial Justice to produce all of the state's knowledge of Brusini's criminal conduct, the state surreptitiously and cleverly directed the court and defense counsel only to the formal immunity petition given to Brusini. Later, when again specifically ordered by the court to produce all promises, rewards, or inducements offered to Brusini, the state once again cleverly directed the court and the defendants to only Brusini's immunity petition. Brusini's immunity petition, however, contained no mention of Brusini's perjured testimony before the grand jury regarding his ownership interest in the Rosemac Building.
The state contends that no misconduct occurred in the withholding of this classically exculpatory and witness impeaching evidence from the defendants and that no prejudice resulted to them as a result of the prosecutors' failure to reveal Brusini's perjury and the resulting non-prosecution agreement that the state had entered into with Brusini. In support of those arguments, the state has advanced several contradictory and incredible assertions.
First, the state asserts that the defendants should have been able to deduce that Brusini committed perjury in front of a grand jury from defense counsel's earlier review of some 600 boxes filled with materials that the state originally had provided to the defendants. The simple response to that assertion is that the trial Justice's pretrial discovery order did not provide for the delivery
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