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The Boston Globe

Opinion

JOAN VENNOCHI

With Cahill, a good law and a weak case

It’s easy when it’s cash stuffed between a state senator’s breasts or checks funneled through a law partner directly into the pockets of the speaker of the House.

It’s harder — as it should be — when a case for political corruption consists of a feel-good lottery ad campaign that cost taxpayers $1.5 million but never mentions the name of the state treasurer who ordered it up. Those are the underlying facts in the case that Attorney General Martha Coakley brought against former state Treasurer Timothy P. Cahill.

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While treasurer, Cahill spent public money to advance a personal political agenda — his failed campaign for governor. A new state law makes it a crime for politicians to do that — if prosecutors can show “fraudulent intent.” But in the case against Cahill, the evidence of fraudulent intent simply wasn’t strong enough.

The jury couldn’t reach a verdict, and a mistrial was declared. The message from the Cahill case: Jurors aren’t going to send someone to jail for subtle wrongdoing. There has to be an exchange of cash, or, in the absence of obvious personal enrichment, clear and direct evidence that speaks to unlawful motive.

Coakley built her case around a series of e-mails between a Cahill campaign aide and the chief executive of the advertising firm that produced the lottery ads. They aren’t ringing endorsements of Cahill’s judgment or integrity, and there was evidence that he turned to the ads to boost his campaign. But the evidence didn’t make it explicitly clear that he knew that what he was doing was illegal, and instructed public employees to go ahead with the illegal action anyway because it would help him politically.

After the mistrial, Coakley decided against a second trial. Instead, under a joint disposition agreement with the state, Cahill admitted to a civil violation of ethics laws and will pay $100,000 for his role in running the ads during his failed 2010 gubernatorial campaign.

According to the disposition, Cahill agreed that he “knew or should have known that he was attempting to use his official position to secure for himself an unwarranted privilege of substantial value.” Future prosecutors will have to decide how much more is needed to show that much, plus fraudulent intent.

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The outcome in the Cahill case may discourage some prosecutors from enforcing the new law. But this isn’t a case of bad law. This was a weak case that should not have been prosecuted criminally.

The law addresses conduct that is wrong. Politicians shouldn’t blatantly spend public dollars on their political campaigns. Right now, after all, taxpayers are being asked to provide more to support better schools and transportation. Why should elected officials be able to divert supposedly limited resources to advance their own political ambitions?

That’s just another definition of personal enrichment, which is what landed former state Senator Dianne Wilkerson and former House Speaker Salvatore F. DiMasi in jail.

Wilkerson took cash, and federal prosecutors had photos from a cooperating witness that showed her stuffing payments into her bra. DiMasi took checks from a law partner, who told a federal jury that he passed thousands of dollars to DiMasi from a software company that was seeking state contracts.

That’s clear, convincing, and direct evidence — exactly what was missing in the Cahill prosecution. The Cahill case was never going to be a slam dunk. It didn’t have the drama of money going into a politician’s pocket or bra, but prosecutors needed more direct evidence of Cahill’s corrupt intent.

In press statements after the disposition agreement with Cahill, Coakley said she doesn’t believe there’s anything wrong with the ethics law and would pursue the case again under the same circumstances. She also believes the jury was struggling with the conspiracy charge that was also brought against Cahill, not with the issue of fraudulent intent.

In the end, she did the right thing, ending up with a disposition of the case that should not have been prosecuted in the first place.

This is not the first time a prosecutor has over-reached. The takeaway should be to enforce public corruption laws more wisely, not to shy away from enforcing them. Such laws should be enforced, because no one in public office is entitled to a blank check at the public’s expense.

Joan Vennochi can be reached at vennochi@globe.com. Follow her on Twitter @Joan_Vennochi.

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