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The (flimsy) case against Finneran

THERE WAS no crime, Goethe once said, that he didn't deem himself capable of committing.

The storied writer is long in his grave, but I suspect even his imagination would have recoiled in horror before what former House Speaker Thomas M. Finneran now stands accused of doing.

Why, if US Attorney Michael J. Sullivan is able to prove the case he outlined on Monday, Finneran could go to prison for . . . essentially misleading a federal court about whether he was involved in the early details of a redistricting plan.

Thank goodness the region's top federal prosecutor has been unrelenting in his pursuit of this evil.

Actually, the real question here is this: How do you define rinky-dink?

This week's answer is simple: the indictment Sullivan got against Finneran.

''When I was attorney general, I would not have pursued a case like this," says Francis X. Bellotti, the man who set the gold standard for what a modern Massachusetts attorney general should be. ''I would have used my resources for something much heavier."

On Monday, as Sullivan carried on about the seriousness of Finneran's alleged crimes, I found myself thinking of the old adage that the power to prosecute is the power to destroy.

Finneran's reputation has already been hurt here, but what a travesty it will be if this politically ambitious prosecutor ends up destroying him.

Now, when he was speaker, I sometimes skewered Finneran for the heavy-handed way he ran the House or lampooned him for his occasional tendency for self-aggrandizement.

Yet I've always thought he was, at core, an honorable guy, a self-made man from a family of modest means who worked his tail off for everything he had and who built a reputation as someone who was smart, determined, effective, and dedicated to the public interest as he saw it.

And for the 15 years that I've watched Finneran, there has never been a whiff of real corruption or scandal attached to him. Indeed, even Sullivan couldn't bring himself to label this a corruption case.

So what's wrong with this indictment? Start with Bellotti's principal objection. To prove perjury, you have to demonstrate that the matter in which a defendant lied was material to the case.

''Materiality is a very important part of perjury," says the former AG. ''This case was brought on the fairness of the redistricting. Whether Finneran influenced it or anything else does not seem to me to be material."

Further, a perjury prosecution -- seldom brought in civil cases like this one -- should be targeted not at broad or general words or statements that admit of varying interpretations but rather at precise denials of specific, concrete, provable acts.

That doesn't remotely describe most of the case in this indictment.

Instead, the indictment is full of what Harvey Silverglate, a well-known legal expert who is writing a book about federal prosecutorial excesses, calls ''weasel words," vague and ambiguous terms that can mean very different things to different people.

For example, what does it mean to ''review" a plan, as the US Attorney's Office asserts Finneran did before its public release, despite Finneran's insistence to the contrary? ''Do you have to have read it or do you just have to have someone describe it to you?" asks Silverglate.

Then there's the crucial matter of intent, a concept long considered the cornerstone of criminal law and one the US Supreme Court unanimously underscored just last week in overturning an obstruction of justice conviction against the accounting firm Arthur Andersen.

''I think they are going to have a hell of a time proving intent, especially in the face of the Supreme Court's recent Arthur Andersen decision, which reinvigorated the doctrine that in order to be guilty of a crime, you have to have an illegal or corrupt intent," says Silverglate.

As Bellotti notes, it is so easy to obtain an indictment ''that there's an old saying that you can indict a ham sandwich."

That's why it is crucial for prosecutors to show mature judgment in the use of their power.

Sullivan hasn't -- and if he has his way, Finneran could face six to 21 months in prison, according to federal sentencing guidelines.

Finneran-haters may applaud, but fair-minded people are left to hope the judge and jury that decide his fate will show better judgment when presented with this flimsy case than the US attorney did in bringing it.

Scot Lehigh's e-mail address is

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