So was Attorney General Martha Coakley’s decision to indict former State Treasurer Tim Cahill for allegedly using Lottery ads to enhance his gubernatorial campaign a good or a poor decision? Our opinion on that should not depend on yesterday’s inconclusive outcome. Nonetheless at least some of the twelve jurors failed to see the criminal menace in Cahill’s actions that Coakley insists is there.
A good deal of elite opinion in this town always argued that Cahill never should have been indicted even under a broader statute that extends criminal sanctions to conduct previously considered only unethical, for conduct regularly indulged in by nearly every politician one could name. The doubters included both me and Professor Ubertaccio.
Now we know that the Attorney General was unable to persuade twelve laypersons that what Cahill did was criminal. The AG continued to maintain in her press conference yesterday the correctness of her decision to prosecute Cahill. She maintains her office had the evidence to convict the former treasurer of ethics laws toughened by 2009 amendments. Let’s assume for a moment that she is correct. That would raise the possibility of juror nullification: some member or members of the jury essentially said, ‘alright you proved your case and I understand the judge’s instructions to the jury, but I don’t think it is a criminal offense and so I will not convict.’
We have in this state a moralistic (Daniel Elazar’s term) strain of thinking that detests the ‘little arts of popularity’ indulged in by ambitious politicians. ‘Oh no’ say these high minded spiritual descendants of our patricians (one of the four Massachusetts subcultures of Edgar Litt) , ‘public service is an exalted calling, it is a distinct honor to serve, and one must never cheapen oneself by base appeals; no decent person would bow to the sort of artifice employed by Cahill.’ We don’t have many patricians left in the state and the most prominent one we do have, former United States Attorney and Governor Bill Weld, didn’t see a criminal case here. But marry the zealous distaste for political shenanigans to the legalistic belief of a perfectly ordered society one might find in a public integrity unit, and we have the Cahill indictment.
A competing cultural view is one characterized by political scientist Daniel Elazar as individualistic or by Edgar Litt in his book The Political Cultures of Massachusetts as that of the Workers. This view is quite a bit more understanding of self-seeking behavior in politics. Such tolerance might even extend to conduct by a public official (known by even casual political observers to extend to the conduct of many officials) that would obtain “an unwarranted privilege not properly available to similarly situated individuals.” The horror!
Apparently at least some of the jurors either didn’t feel the Attorney General proved the case or felt that even if she had it didn’t amount to criminal conduct.
Political commentary had already assigned a plus to Coakley in the event of a conviction and damage if there wasn’t one. That returns us to the original question, was the decision to indict a good one or a poor one? That would not depend on the outcome; some good decisions have an unfavorable result, and some poor ones are saved by luck.
In this matter the original decision was a poor one, for reasons argued months ago by both Professor Ubertaccio and me. This decision sits squarely with the attorney general who as a politician herself should have recognized the realities of Cahill’s situation. This is not an expression of admiration for Cahill. The Lottery ads were certainly hoped to benefit his campaign but in his circumstances the TV ads were useless to provide any political benefit (though they might have helped the Lottery some). He was badly beaten and his political career most likely at an end.
This case has tied up a long period of Cahill’s life, exposed him to loss of his liberty, been enormously expensive, and tormented his family. Attorney General Coakley said yesterday that she has not decided whether to retry Cahill but there is a status hearing in January. I keep returning in my mind to former US Labor Secretary Ray Donovan, charged and acquitted of criminal fraud charges, who exited the court room and asked “Which office do I go to get my reputation back?”
The only decent thing to do now is to dismiss the charges and let Cahill and his family enjoy a Merry Christmas.