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Saturday, February 26, 2011

Why The Biggest Fish Really Go Free

There is an interesting story from the New York Times' Joe Nocera on why the biggest fish in the massive financial meltdown scandals -- AIG, Countrywide, Merrill, Lehman, Bear Stearns, etc. -- have gone free.  Nocera writes that it is difficult to make criminal cases beyond a reasonable doubt in matters involving complex financial fraud, and cites the following reasons:
  • the lack of sophisticated federal prosecutors outside of the island of Manhattan;
  • by implication, the lack of other investigative resources, i.e., investigators and investigative lawyers who know what they are looking at -- the same problem plaguing the Securities and Exchange Commission, by the way; and
  • those darned high-priced white-collar defense lawyers.
Nocera misses the main reason: prosecutorial ambition.

        [For earlier Eric Dixon commentary on prosecutorial ambition and the dangers it poses to your freedom, click here for earlier commentary on the acquittal of two low-level Bear Stearns executives and a recent story on the use of RICO in prosecutions (in which I link to my earlier coverage of Ben Kuehne, Ted Stevens and David Stockman).]

Young, twenty-something -- and dangerously naive -- prosecutors and government lawyers looking to make a name for themselves often look for the biggest scalp -- i.e., the greatest name -- to take in order to build a resume that will land them in a (hopefully) lucrative law firm partnership.  But the reality is that these lawyers are ultimately judged by their won-lost record.  

That's why prosecutors bring the easiest cases.

And sometimes the easiest cases are against the smaller -- or smallest -- fish.  Sometimes these are the ones who are the least able to fight back and defend themselves; sometimes they might even be totally innocent.  And sometimes that just doesn't matter.

Eric Dixon is a New York lawyer.  Mr. Dixon can be reached for further comment at edixon@NYBusinessCounsel.com.  

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