Picerno not coerced into aiding bribery probe, judge rules

PROVIDENCE - A former Lincoln Planning Board member's incriminating statements to the state police, and cash seized from his house, will be allowed as evidence at his upcoming trial on bribery and conspiracy charges, Superior Court Judge Judith C. Savage ruled yesterday in a written decision.

Savage rejected Robert R. Picerno's claims that the state police coerced him into cooperating and ignored his requests for a lawyer. She accused Picerno of "gross exaggeration and distortion of the facts" in his testimony at a pretrial hearing.

Picerno and his co-defendant, former Lincoln Town Administrator Jonathan F. Oster, are charged with taking bribes. Picerno was arrested Feb. 15, 2002, and released from state police custody the following afternoon. In the intervening 27 hours, Picerno agreed to hand Oster an envelope containing $10,000 in cash; their meeting the morning of Feb. 16 led to Oster's arrest.

Throughout Savage's 44-page decision, she questioned the credibility of Picerno's testimony and arguments, while treating the state's testimony, by and large, as fact.

In explaining her judgment, Savage presented an example from the hearing. "Although defendant Picerno began his direct testimony . . . by describing his arrest as a violent one in which he was jumped by nine or ten police officers and forcefully pushed down onto the top of a police cruiser, a videotape of the arrest . . . showed nothing of the sort," Savage wrote. "The arrest was conventional, swift, calm, and involved only four police officers."

This, Savage wrote, "would be the first of many such moments . . . that would serve only to undermine defendant Picerno's credibility and corroborate the opposing testimony of the state's witnesses."

Savage heard four days of testimony in November and two days of testimony earlier this month. In the course of the hearing, prosecutors played a videotape in which the state police find bundles of cash in the Picernos' freezer next to a half-gallon carton of Friendly's ice cream, and in their dresser drawer, inside a box of panty shields. Picerno accused a state police detective of swearing at him and calling him fat.

Lawyers for Picerno and the state presented dueling handwriting experts to, respectively, shore up and cast doubt upon Picerno's claim that he didn't remember initialing two items, out of a total of eight, on a state police rights-waiver form.

The two items Picerno said he didn't remember initialing were those agreeing to give a statement and waiving the right to have a lawyer present.

The defense's handwriting expert, Charles M. Shure, testified that it was his opinion "with scientific certainty, that it approaches or equals highly probable" that the questioned initials were written by a different person than the initials Picerno acknowledged having written.

The state's expert, John F. Breslin, testified that Picerno "could not be identified as, nor limited from" being the author of the questioned initials.

Savage had reopened the hearing specifically for the purpose of hearing the experts' testimony, but she wrote that the new testimony did not affect her decision. "Neither of the experts' pedestrian comparisons was at all helpful to the court," she wrote.

Savage questioned Shure's credentials and wrote that his findings were possibly influenced by the prospect of financial gain, since Shure had been offered additional money for time spent in court, and he knew he would not be called to testify unless his findings favored Picerno.

Quoting from an earlier court case, Savage wrote that Shure's testimony "brought to mind the label of 'charlatan or purveyor of junk science.' " She called Picerno's avowed memory lapse "a desperate, eleventh-hour attempt to bolster his testimony."

Savage ruled that prosecutors' agreement not to prosecute Picerno's wife and son for mortgage fraud, if Picerno agreed to cooperate in the investigation of Oster, did not amount to coercion or a threat.

And, she upheld the search in which the state police seized cash from Picerno's house, ruling that the consent given by Picerno's wife, Joyce, was voluntary. The detectives' agreement that Joyce Picerno could see her husband after the search did not coerce her consent because the detectives never said she wouldn't be able to see him if she didn't consent to the search, Savage wrote.

Lastly, Savage ruled the state police did not violate Picerno's right to a lawyer. "Defendant Picerno did not ask for an attorney," she wrote. "He merely asked whether he should have an attorney."

With regard to Picerno's right to a lawyer of his choosing, Savage ruled that a detective's suggestion of the names of several criminal-defense lawyers, taken from the Yellow Pages at Picerno's request, did not amount to handpicking a lawyer for Picerno.

In a written statement issued yesterday evening, Attorney General Patrick C. Lynch said he was "grateful" for Savage's "ability to see through the smokescreen presented by the defense counsel in this case."

Picerno's trial is set to begin March 31, with Oster's to follow. The sides are in the process of submitting briefs on a second pretrial motion, which seeks to suppress recordings of Picerno's phone calls, which were wiretapped by the state police in late 2001 and early 2002.