HAMILTON — A judge has denied an 11th-hour request by the lawyer for a former MIT professor and self-styled “business guru” to postpone his upcoming trial on forgery and fraud charges.
The motion, filed Tuesday by defense lawyer Robert Strasnick shortly before the hearing was slated to get underway in Lawrence Superior Court, asked Judge Salim Tabit to postpone the trial so that John Donovan Sr. could receive treatments for, what a doctor later testified, was prostate cancer.
Donovan Sr., 79, of Hamilton, is charged in a 2017 indictment in an alleged scheme to claim proceeds from the sale of land once controlled by his late son, John Donovan III, of Manchester, to the Trust for Public Lands back in 2016, as well as to be absolved of financial and legal obligations.
Jury selection is set to get underway Monday in the trial.
Massachusetts General Hospital oncologist Dr. Philip Saylor testified via Zoom that he had recommended starting treatment a few months ago; it was just this month that blood tests and a scan convinced Donovan Sr. to begin that regimen, which involve a testosterone-lowering drug administered once every three months. The side effects can include cognitive difficulties and hot flashes, which in turn can cause a loss of sleep.
Tabit said that while it’s not certain that Donovan Sr. would be incapable of assisting his attorney, the possibility that he might be cognitively impaired by the decline in testosterone or lack of sleep would become a potential avenue for appeal and a motion for a new trial.
At the same time, he told the lawyers, he was concerned that another delay in the case would be unfair to Donovan Sr.’s surviving children and his son’s widow.
Tabit issued his decision late Tuesday, denying the postponement.
Strasnick initially sought to seal the motion, suggesting that the information could be used against his client by his estranged children in a separate civil proceeding. Strasnick also told the judge that he believes that the Health Insurance Portability and Accountability Act (HIPAA) required the judge to seal the material — an assertion the judge and prosecutor Jack Dawley both disputed, saying that law applies to health care providers, not to courts or lawyers.
The ruling came as the defense, in a series of motions, revealed Donovan Sr.’s anticipated defense: He denies that the documents were forgeries, and claims that his four surviving children are attempting to hide their involvement in what he claims was a fraudulently-created off-shore trust in the 1990s.
Among the alleged forgeries is a will codicil that purported to instruct those handling Donovan III’s estate to “self-report” to the IRS that the trust was set up to evade taxes.
Dawley slammed the claims as “a blatant and a shameful attempt to get his kids under a microscope and embarrass them.” The issue stems from a trust set up in Bermuda for Donovan Sr.’s children, which, the prosecutor said, Donovan Sr. later tried to take back.
None of Donovan’s children have ever been accused of tax fraud and there is evidence that they relied on advice from the now-defunct accounting firm Arthur Andersen, Dawley told the judge. Beyond that, the IRS does not accept “self-reports” from the estates of deceased taxpayers.
Strasnick told the judge that, according to his client, the codicil was added to help Donovan III’s widow and children avoid penalties.
While the trial was pending, Strasnick obtained taxpayer funds to hire a tax expert for Donovan Sr., who has claimed indigency. Strasnick is seeking to call that expert to testify about what his client says happened.
Dawley said that James Donovan, a top executive at Goldman Sachs who at one time was being vetted for a Treasury Department deputy secretary slot, did nothing wrong, and told Tabit that if that expert is allowed to testify, it will add two to three weeks to the trial schedule because he will have to bring in his own tax expert.
Among the other rulings on Tuesday:
Jurors will not be told about Donovan’s 2007 conviction for filing a false police report in a highly-publicized incident in which, a judge later concluded, he inflicted a graze wound to his abdomen with a gun, then tried to frame his son James, claiming to police that his son had sent “Russian hit men” to kill him. The prosecution conceded that the conviction fell outside a 10-year limit on admitting prior convictions.
Jurors may learn about an audio recording that, prosecutors allege, was altered to insert Donovan Sr. into a conversation between a Vermont lawyer and Donovan III during which Donovan III discussed options for “death with dignity.” The prosecution is also seeking to admit evidence he says shows that Donovan Sr. falsely claimed to his son’s doctors that he was also a doctor and that he held a health care proxy for his dying son.
The jury will hear, however, about an allegation by Donovan III’s widow that Donovan Sr. used notes written by his late son to his young children to compile and publish a book of business advice called “Make the Moments Better,” without permission of his late son.
Donovan, who has typically worn dark business suits to court appearances, appeared for Tuesday’s hearing in a tan corduroy sport coat with a piece of torn lining visible from the back hem, and a pair of tan jeans with the ankles rolled up, revealing white athletic socks.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at email@example.com or on Twitter at @SNJulieManganis