Doc Berman ponts to the abstract of an academic paper by White Collar Crime Prof blogger Ellen Podgor who suggests that "the next phase of wrongful convictions might move beyond street crimes into the white collar world" because the "trial penalty" for not cutting a deal is so great that "in order to minimize the possible consequences, innocence becomes an irrelevancy." I certainly agree that's a big cause of false convictions, and not just in the white-collar arena. So if it takes white-collar cases to put the issue on the map, so be it.
Some of the best recent writing I've seen on this topic has come from Tom Kirkendall at Houston's Clear Thinkers, who believes that "There is a huge difference between what Marc Dreier did and what Jeff Skilling did. It reflects poorly on us that our criminal justice system cannot distinguish between the two." His post, "The reeling prosecution in the Skilling case," is a must-read. In another post he points out that
it's not every day that a federal appellate court concludes that a newspaper's coverage of a particular event was a major factor in the creation of a presumption of community prejudice," but "that's precisely what the Fifth Circuit Court of Appeals did with regard to the Houston Chronicle's coverage of the demise of Enron generally and the prosecution of Jeff Skilling specifically (see pp. 41-45 of the Fifth Circuit decision).This morning, reacting to the dismissal of charges against Enron Broadband Director Scott Yeager, Tom suggests Enron prosecutors grossly abused their prosecutorial authority:
The prosecutors who pursued these cases ruined careers and harmed families by abusing the state's overwhelming prosecutorial power. They remind me of Ayn Rand's observation about socialists who use state power to further their supposedly altruistic goals:
"[T]he truth about their souls is worse than the obscene excuse you have allowed them, the excuse that the end justifies the means and that the horrors they practice are means to nobler ends."
"The truth is that those horrors are their ends."
It's rather amazing to me that so many people in Washington refuse to regulate corporations but it's somehow fine to prosecute their leaders for bad business decisions. Tom's right, there's a difference between Ponzi schemers or bribe takers and aggressive businesspeople who played by the rules of the game at the time but ended up losing money. I couldn't cite chapter and verse, but my sense is that part of the reason this trend has developed is that tort reform has disempowered civil courts as a meaningful remedy for investors in these multi-billion dollar calamities, so punitive criminal charges are all that's left as a remedy to recoup what they can from the losses and assuage the public anger in the aftermath.