The entry below is being cross posted from Marjorie Arons-Barron’s own blog.
After 40 hours over 7 days of deliberation, the news is finally in: the jury in the criminal trial of former state treasurer Tim Cahill couldn’t reach a unianimous decision about whether he misappropriated public funds for campaign purposes and committed procurement fraud. The judge has declared a mistrial.
This outcome raises serious questions about the new 2009 ethics law, which criminalizes behavior previously treated as a civil offense and enforced by the state Ethics Commission. The punishment then would have been a fine, along with public shame, instead of five years in the slammer. It turns out that, as I have written before, the law and the Attorney General’s new Public Integrity Division, were using a cannon to kill a flea.
Cahill himself viewed the hung jury as “total vindication,” but that is not at all true. We don’t know what the breakdown was on the jury, how many of the members do believe he is guilty of the charges. All we know is that at least one of the 12 didn’t think he was guilty beyond a reasonable doubt and wouldn’t vote to convict.
At issue was Cahill’s using three quarters of the FY 2011 Lottery Commission budget to extol the virtues of, er, the lottery but in reality using the advertising budget to support his Independent gubernatorial bid. Superfically, you might say, that this behavior is no different from Mayor Tom Menino using construction site signage to boost his career, or Governor Deval Patrick having Turnpike anti-gun warnings enhance his visibility, or Secretary of State Bill Galvin broadcasting voter registration public service spots to strengthen his political campaigns. Reportedly, Galvin’s ads don’t appear during an election season, but aren’t we in a perpetual campaign? Yet none of these examples is as serious as Cahill’s alleged transgression, based on the trail of emails, phone calls and text messages between and among Cahill’s campaign consultants and the account executives handling the lottery account. Their communications seem to reinforce the case that the ad campaign was designed with Cahill’s candidacy in mind. But jurors had a difference of opinion. Cahill’s testimony may have been truthful, but it strained credulity.
Some jurors may have been persuaded by Cahill’s contention that he was innocent of charges because his face and name were deliberately excluded from the Lottery commercials. Maybe they also believed that lottery ticket buyers were legitimately turned off by negative anti-Lottery ads run by the National Republican Governors Association during the gubernatorial campaign, when Cahill’s Independent candidacy threatened to draw anti-Patrick votes from Republican Charlie Baker. The defense argued that the ads were necessary to protect the productivity of the lottery.
Under the new law, passed in in the wake of a series of political scandals, Coakley had little choice but to bring criminal charges, and the grand jury did indict. (It is, of course, often said that, given the rules for grand jury proceedings, a grand jury “would indict a ham sandwich.”) She was damned if she did and damned if she didn’t. If Coakley failed to act, she’d be accused of a cover-up. If she indicted Cahill, she would be accused of being too aggressive and trying to advance her own career. She has said she is running for re-election rather than for governor, but her failed attempt to convict Cahill (a tempting target inasmuch as he thumbed his nose at his party by running against Governor Patrick as an independent two years ago) reminds us of why it is so hard for attorneys general to win support of other politicians to gain higher office. If they’re doing their jobs, they’re stepping on legislators’ toes, witness the examples of Scott Harshbarger, Robert Quinn and Frank Bellotti , all of whom were unsuccessful in advancing to the corner office.
It’s not clear whether the failure to convict rests with the prosecutors or with the way the new law is written. At least one juror said it was too complicated, and jurors repeatedly turned to the judge to clarify her instructions.
For starters, the legislature should review the law, which they passed to clean up their image in the wake of Sal Di Masi’s conviction and other breaches of the public trust. Amendments may be in order. And prosecutors, for their part, should drop the Cahill case. Do not retry it. Find a better case to prosecute under the new law or go back to treating this level offense as a civil violation. After all, Di Masi was convicted before the new law was even on the books. Maybe if this were a civil action with a hefty fine, Cahill wouldn’t be crowing “total vindication.”
Regardless of which route they take, politicians will have to be much more careful about how much, using taxpayer dollars, they inject themselves in official promotions or glom onto other advertising incidental to the duties of their office. No way should this case be seen as a green light for business as usual on Beacon Hill.
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