4 ms·

I think you misunderstood the point of this article. It's not that the prosecutors are "afraid" of losing a case, it's that they are demonstrably losing these c

by scott_s 11y ago

I think you misunderstood the point of this article. It's not that the prosecutors are "afraid" of losing a case, it's that they are demonstrably losing these cases. And the reason appears to be that the circumstances are too complex for juries to understand. That is a systemic problem, one which we don't have a good solution for. The response from the Justice Department seems to be, instead of failing at doing the same thing over-and-over, let's do a different, simpler thing. I agree that is not a good thing. But I don't think it's reasonable to argue they should keep doing the same thing over-and-over, expecting failure. And I don't have enough insight into the problem to say how they could successfully prosecute these complex cases.

bradleyjg 11y ago
>> That is a systemic problem, one which we don't have a good solution for. There is a pretty straightforward solution. I'll leave to the reader whether or not it is a good one. Redefine the crimes so they are easier to prove. In many cases that is going to involve moving from a mens rea (guilty mental state) of intentionally to recklessly, negligently or even eliminating mens rea altogether and just requiring an actus reus (guilty act). In some cases that might mean criminalizing more acts of omission instead of requiring proof of an overt bad act. I want to be clear that this wouldn't be costless. It goes against much our existing framework for what makes people criminals. It would increase the chance that someone who made honest mistakes would be criminally punished. But remember Blackstone said that it is better for ten guilty men to go free than one man suffer, not one hundred, not one thousand and certainly not all the guilty men. And he was writing in an era when all felonies were capital crimes. A small percentage of murderers getting off on technicalities is something a society can live with, even be proud of in a strange way, but when the exception swallows the rule that society is playing with fire.
- morgante 11y ago
  You're asking that we overturn centuries of jurisprudence just because you don't like bankers. I think that's a much bigger crime than anything financiers have supposedly committed.
  - Bjartr 11y ago
    Are those centuries of jurisprudence still valuable in these scenarios if they're not working?
    - morgante 11y ago
      How do we know they're not working? Maybe it's working perfectly to protect financiers from being prosecuted for immoral but legal acts.
      - chc 11y ago
        That would be what most people mean when they say they laws are not working. Similar to how, if our laws allowed highwaymen to get away with murder, we'd say they were failing us even though they were working perfectly to protect armed robbers.
        saryant 11y ago
        If an act isn't actually illegal, your problem isn't with the courts. It's with the legislative branch.
  - bradleyjg 11y ago
    What exactly in what I wrote suggests throwing out centuries of jurisprudence? There are already strict liability crimes, much less recklessness or negligence crimes, as well as crimes of omission. Also what crime were you accusing me of having committed? Unlawful proposing of legislation Morgante doesn't like?
    - lmm 11y ago
      Strict liability crimes are a travesty against justice. They really shouldn't exist; we should be looking to remove the ones we have rather than adding any more. (GP wasn't claiming that you were literally committing a crime, rather suggesting that making it easier to convict innocent people would be a "crime" in a rhetorical sense)
- ridgeguy 11y ago
  Interesting idea, sort of a strict liability approach. If I'm a superqualified, incredibly careful, good-guy explosives chemist, I still don't get to whip up a batch of Octol in my garage. The law deems explosives manufacture an inherently dangerous activity subject to strict liability. No mens rea needed, intent is irrelevant, conduct is all. Strict liability principles have worked fairly well. Maybe they're worth trying in the financial sphere. I wonder how we would define an inherently dangerous financial activity?
- totallymeat 11y ago
  That's the way things work in the health care profession. If you're a nurse and you mess up (e.g. give medication to the wrong patient), you can potentially end up in jail and lose your license. It doesn't matter if it was an honest mistake or done in cold blood, your mental state doesn't factor in because it's a matter of life and death. Wouldn't be too far fetched to argue that speculative investing at too-big-to-fail scales poses a similar existential threat and should be treated accordingly by the law.
dogma1138 11y ago
The question should be are those cases really that complicated or does the defense makes them overly complicated because they can afford too? People who steal millions or billions can hire an army of lawyers that can bring so many expert witnesses that can make the jury doubt in the existence of the Sun beyond a shadow of a doubt. Several years ago there was a case that a guy got caught speeding, he petitioned the laser speedometer thingie to be sent to a impartial lab for testing on his own dime and got enough expert witnesses to rip that thing to shreds claiming that the device was inherently flawed and that the police didn't calibrate it and maintain it properly including leaving it locked in the car where the high temperatures could affect it's accuracy. He then also went own and brought evidence that other police equipment like the speed tracking radar might not be accurate on his car because of it's design and the fact that it was build of composite materials and not metal which what the speed tracking radars they use are calibrated for. This case and several like it combined lead to a sweep of people appealing every speeding ticket which eventually got a law passed that every speed enforcement system which gets certified by the local standards institution cannot be brought to question in court. When you drive a car with 5 or 6 zero's in it's price tag you probably have 10 more zero's in your bank account, which means you can spend allot of money on casting doubt on everything from the devices that the polices uses to the competency of their operators. If you are a guy who got speeding in a 2006 Jetta? well pay the fine. So while I can understand how a case involving complex financial fraud can be complicated I'm also quite aware just how easy it is to complicate things, I work for a consultancy which means I work with people who's their definition is to shuffle shit out of their mouth until the case gets complicated enough to warrant the hefty price tag they want to charge for that work, 10,000$ an hour lawyers should be able to bring that to a whole new level.
- lmm 11y ago
  Well if the laser speedometer isn't accurate enough or isn't maintained properly then it shouldn't be enough to convict. If the evidence really is solid, throwing money at it won't make it go away.
  - dogma1138 11y ago
    It was plenty accurate, experts can cast doubt on most evidence, nothing is ever iron clad.
r00fus 11y ago
The same juries that are selected using an adversarial process where each side can only remove jury members? Yeah, color me surprised that this results in weak juries.
- deleted 11y ago
  [deleted]
6d0debc071 11y ago
> That is a systemic problem, one which we don't have a good solution for. Change the jury system/procedure to something better designed to generate trustworthy outputs. It seems simple enough in concept and there are many improvements that can be trivially suggested to improve the system even if we retained the idea of picking N people from the general population.
yourepowerless 11y ago
Lol, they aren't even trying, how can they lose if they don't even begun the suit. Lol, apologist failure. The former top justice official is on record stating they don't prosecute becuase they fear systemic risk, ie too big to jail, too big to fail, all just mottos and lies to let your fellow country club members off the hook.
- scott_s 11y ago
  The article talks about specific cases where they did try.
  - yourepowerless 11y ago
    Half hearted at best. The flimsy article mentions three cases, one of which was a witch trial brought by Goldman Sachs. Libor fraud? Pass. Money laundering for drug cartels? Pass. Would you believe it just if someone robbed you, was caught and had a pay a fine of half the amount they took? The government essentially allows criminal fraud by the powerful and then takes their cut of the profits, meanwhile the weak and poor continue to suffer, but luckily we got intellectuals who can explain away how its all too complicated. Complete and utter bullshit.
themartorana 11y ago
It's not that hard to understand. It's a framing issue. You could pull off the most complicated, Oceans 11 heist in history, and the prosecutor will dumb it down to you being, in the end, a "common thief." These people are common thieves on an epic scale. They steal money, yes, but stability, security, futures, homes, and so on. But defense attorneys take the opportunity to make things seem complicated. Just dumb it down for them.
- billmalarky 11y ago
  Dumbing down the law is how we ended up with the war on drugs and "zero-tolerance" (policy not law) in schools.

by scott_s 11y ago

bradleyjg 11y ago

>> That is a systemic problem, one which we don't have a good solution for. There is a pretty straightforward solution. I'll leave to the reader whether or not it is a good one. Redefine the crimes so they are easier to prove. In many cases that is going to involve moving from a mens rea (guilty mental state) of intentionally to recklessly, negligently or even eliminating mens rea altogether and just requiring an actus reus (guilty act). In some cases that might mean criminalizing more acts of omission instead of requiring proof of an overt bad act. I want to be clear that this wouldn't be costless. It goes against much our existing framework for what makes people criminals. It would increase the chance that someone who made honest mistakes would be criminally punished. But remember Blackstone said that it is better for ten guilty men to go free than one man suffer, not one hundred, not one thousand and certainly not all the guilty men. And he was writing in an era when all felonies were capital crimes. A small percentage of murderers getting off on technicalities is something a society can live with, even be proud of in a strange way, but when the exception swallows the rule that society is playing with fire.

morgante 11y ago
You're asking that we overturn centuries of jurisprudence just because you don't like bankers. I think that's a much bigger crime than anything financiers have supposedly committed.
- Bjartr 11y ago
  Are those centuries of jurisprudence still valuable in these scenarios if they're not working?
  - morgante 11y ago
    How do we know they're not working? Maybe it's working perfectly to protect financiers from being prosecuted for immoral but legal acts.
    - chc 11y ago
      That would be what most people mean when they say they laws are not working. Similar to how, if our laws allowed highwaymen to get away with murder, we'd say they were failing us even though they were working perfectly to protect armed robbers.
      - saryant 11y ago
        If an act isn't actually illegal, your problem isn't with the courts. It's with the legislative branch.
- bradleyjg 11y ago
  What exactly in what I wrote suggests throwing out centuries of jurisprudence? There are already strict liability crimes, much less recklessness or negligence crimes, as well as crimes of omission. Also what crime were you accusing me of having committed? Unlawful proposing of legislation Morgante doesn't like?
  - lmm 11y ago
    Strict liability crimes are a travesty against justice. They really shouldn't exist; we should be looking to remove the ones we have rather than adding any more. (GP wasn't claiming that you were literally committing a crime, rather suggesting that making it easier to convict innocent people would be a "crime" in a rhetorical sense)
ridgeguy 11y ago
Interesting idea, sort of a strict liability approach. If I'm a superqualified, incredibly careful, good-guy explosives chemist, I still don't get to whip up a batch of Octol in my garage. The law deems explosives manufacture an inherently dangerous activity subject to strict liability. No mens rea needed, intent is irrelevant, conduct is all. Strict liability principles have worked fairly well. Maybe they're worth trying in the financial sphere. I wonder how we would define an inherently dangerous financial activity?
totallymeat 11y ago
That's the way things work in the health care profession. If you're a nurse and you mess up (e.g. give medication to the wrong patient), you can potentially end up in jail and lose your license. It doesn't matter if it was an honest mistake or done in cold blood, your mental state doesn't factor in because it's a matter of life and death. Wouldn't be too far fetched to argue that speculative investing at too-big-to-fail scales poses a similar existential threat and should be treated accordingly by the law.

dogma1138 11y ago

The question should be are those cases really that complicated or does the defense makes them overly complicated because they can afford too? People who steal millions or billions can hire an army of lawyers that can bring so many expert witnesses that can make the jury doubt in the existence of the Sun beyond a shadow of a doubt. Several years ago there was a case that a guy got caught speeding, he petitioned the laser speedometer thingie to be sent to a impartial lab for testing on his own dime and got enough expert witnesses to rip that thing to shreds claiming that the device was inherently flawed and that the police didn't calibrate it and maintain it properly including leaving it locked in the car where the high temperatures could affect it's accuracy. He then also went own and brought evidence that other police equipment like the speed tracking radar might not be accurate on his car because of it's design and the fact that it was build of composite materials and not metal which what the speed tracking radars they use are calibrated for. This case and several like it combined lead to a sweep of people appealing every speeding ticket which eventually got a law passed that every speed enforcement system which gets certified by the local standards institution cannot be brought to question in court. When you drive a car with 5 or 6 zero's in it's price tag you probably have 10 more zero's in your bank account, which means you can spend allot of money on casting doubt on everything from the devices that the polices uses to the competency of their operators. If you are a guy who got speeding in a 2006 Jetta? well pay the fine. So while I can understand how a case involving complex financial fraud can be complicated I'm also quite aware just how easy it is to complicate things, I work for a consultancy which means I work with people who's their definition is to shuffle shit out of their mouth until the case gets complicated enough to warrant the hefty price tag they want to charge for that work, 10,000$ an hour lawyers should be able to bring that to a whole new level.

lmm 11y ago
Well if the laser speedometer isn't accurate enough or isn't maintained properly then it shouldn't be enough to convict. If the evidence really is solid, throwing money at it won't make it go away.
- dogma1138 11y ago
  It was plenty accurate, experts can cast doubt on most evidence, nothing is ever iron clad.

r00fus 11y ago

The same juries that are selected using an adversarial process where each side can only remove jury members? Yeah, color me surprised that this results in weak juries.

deleted 11y ago
[deleted]

6d0debc071 11y ago

> That is a systemic problem, one which we don't have a good solution for. Change the jury system/procedure to something better designed to generate trustworthy outputs. It seems simple enough in concept and there are many improvements that can be trivially suggested to improve the system even if we retained the idea of picking N people from the general population.

yourepowerless 11y ago

Lol, they aren't even trying, how can they lose if they don't even begun the suit. Lol, apologist failure. The former top justice official is on record stating they don't prosecute becuase they fear systemic risk, ie too big to jail, too big to fail, all just mottos and lies to let your fellow country club members off the hook.

scott_s 11y ago
The article talks about specific cases where they did try.
- yourepowerless 11y ago
  Half hearted at best. The flimsy article mentions three cases, one of which was a witch trial brought by Goldman Sachs. Libor fraud? Pass. Money laundering for drug cartels? Pass. Would you believe it just if someone robbed you, was caught and had a pay a fine of half the amount they took? The government essentially allows criminal fraud by the powerful and then takes their cut of the profits, meanwhile the weak and poor continue to suffer, but luckily we got intellectuals who can explain away how its all too complicated. Complete and utter bullshit.

themartorana 11y ago

It's not that hard to understand. It's a framing issue. You could pull off the most complicated, Oceans 11 heist in history, and the prosecutor will dumb it down to you being, in the end, a "common thief." These people are common thieves on an epic scale. They steal money, yes, but stability, security, futures, homes, and so on. But defense attorneys take the opportunity to make things seem complicated. Just dumb it down for them.

billmalarky 11y ago
Dumbing down the law is how we ended up with the war on drugs and "zero-tolerance" (policy not law) in schools.