Truth and Justice

Mark Twain once said: “We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding 12 men who don’t know anything and can’t read.” More than 130 years later that is still true. But added to the stipulation is the requirement that the jurors live under a rock.


In America, the more complicated the crime the less likely jurors will reach a conviction. If lawyers can bamboozle them sufficiently, a mistrial is as good as a victory. This works to the advantage of white collar criminals in intricate cases, usually those involving the most money extorted in the most convoluted ways.


Take the second trial of Frank Quattrone, former CSFB investment banker, which began on April 13 and rested last Wednesday. His first trial resulted in a hung jury and a mistrial. In trial number two, prosecutors linked Quattrone’s IPO churning activities to those of fellow brokers and stray emails. This increased the case’s complexity and the likelihood of a similar outcome.


Last month, another high profile corporate criminal case ended in mistrial. After six months, thousands of documents and hundreds of hours of court time, Tyco’s former chief, Dennis Kozlowski, emerged with a smile and a presidential wave.


The press was as much at fault for that mistrial call as the 79-year-old juror they vilified for her actions. It was the Wall Street Journal and New York Post which crossed conventional journalism lines by exposing her personal details.


Trying criminal cases requires selecting 12 unbiased jurors. They have to reach a unanimous decision. They must also possess as little knowledge about the case as possible. Finding people who fit the bill is hard the first time; the second, it requires locating 12 cave dwellers. All but impossible for a Tyco retrial. Mistrial details were blasted across every big media outlet. Gossip about Kozlowski’s $6,000 shower curtains, $2m parties and mistresses stoked many water cooler conversations.


In a country fixated with reality shows, involvement in a highly publicised trial fulfills many people’s desire for the spotlight. This is incongruous with juror impartiality. Indeed, after the Tyco mistrial, several jurors jumped on the bandwagon. One wrote an account for Time magazine; another awaits a book deal and others appeared on television.


Meanwhile, the US press waxes oddly optimistic about corporate criminal justice. After Tyco’s mistrial announcement, the New York Times ran two back-to-back stories extolling white collar victories. The reality is different. Because of the nature of the jury system, there have been precious few important convictions arising from actual proceedings.


Mostly, closing complex high profile cases, such as that against Enron’s former financial chief Andrew Fastow, has occurred via out of court deals. They were not litigated. Conversely, two of the biggest scandals to see courtrooms were declared mistrials. A third, Adelphia, tried to follow suit.


The cases won in court were straightforward, involving “simple” actions such as obstruction of justice, not mountains of documents about how money was moved around a firm and out to offshore partnerships. That was as much Martha Stewart’s problem as her poor choice in confidants.


Change is possible, though few judges want to stretch boundaries. According to David Graeven and Mike Tiktinsky, jury selection consultants at Trial Consulting Behavior, “the most important policy remedy is treating jurors like adults”.


This means prosecutors providing clearer information and judges imposing stricter time limitations. Jurors should be allowed to discuss material during the trial, take notes and ask questions. The most byzantine accounting cases should be handled like securities fraud – tried first by judges.


Trying corporate crimes requires significant time for inadequately informed jurors. That’s why big trials have ended as a result of technicalities, not decisions. This works in favor of white collar criminals and leaves intact the system that enables their crimes because the system is never on trial. It provides no-fault emergence from bankruptcy. That’s the wrong side of justice.


[Nomi Prins is a former banker and the author of Other People’s Money: The Corporate Mugging of America.]

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