OK, things are getting a little unfair for Martha Stewart. Mr. Spitzer? SEC guys? Are you listening? Either charge her or let her walk.

I don't say this because I'm a particular fan of the home living maven. I find her kind of irritating in that use-this-coaster-I-made-myself-out-of-dried-flowers-and-beeswax-dear way... made even more abrasive by the fact that her efforts actually turn out pretty well.

Or at least they did until last June, when reports surfaced that she may have sold stock based on inside information about Imclone's impending disappointment from the FDA on its wonder drug, Erbitux. That news put stock in her empire, Martha Stewart Living Omnimedia, into a long, 61 percent tailspin.

And while we have found out a lot about that fateful trade -- and admittedly some of the details make you go "hmmm" -- we haven't found a smoking gun.

More outrage? Click me

We've found out plenty about Sam Waksal, the former head of Imclone and the central figure in all its stock manipulations. He knew (before the public knew) the FDA was going to slap down Erbitux. He allegedly dumped stock ahead of time and told family members to dump too. As an added bonus, we learned this week he apparently placed bets against the stock as well, to take advantage of the impending doom. Every cloud can have a silver lining, right?

So far Waksal hasn't admitted telling Martha. And Martha says he didn't tell Martha.

Martha's broker, Peter Bacanovic, who also deals with Waksal, could have told Martha, but he isn't talking.

Doug Faneuil ... he said

Now, Bacanovic had this assistant, Doug Faneuil, who pleaded guilty last October to accepting bribes for keeping quiet about passing along inside info on Imclone. The charges don't name Stewart explicitly. But c'mon, we know who they're talking about, right? And the word is Faneuil will be a star witness for the prosecution should this case ever come to trial.

Great, that's an instant winner. A classic "he said, she said." Of course, the "he" in this case is a 27-year-old kid who's been leaned on by New York Attorney General Eliot Spitzer and SEC investigators. (Picture a "Law & Order"-type grilling session, but with really nerdy detectives.) The "she" is a business leader with serious connections and serious lawyers.

Not exactly a slam dunk for the prosecution.

Sure, there is enough smoke there to wonder about a fire. In fact, I've been expecting to write an eat-crow column for some time now, since I suggested early on that the lady, irritating as she is, may be guilty of nothing more than being a smart stock trader.

She said ... profits are down

But it's been more than 8 months now. Omnimedia's stock that was trading at $12.81 last June is now down close to $7. That's a market cap loss of close to $300 million. That's quite a fine for a $220,000 trade.

Hey, if she did do the crime she should pay. But that hasn't been proven and doesn't look like it is going to be proven.

Punishing someone isn't right if you can't make a case.

Even if the person is irritating.  

Allen Wastler is managing editor of CNN/Money and a commentator on CNNfn. He can be e-mailed here.