Judge Rakoff's Essay on Finance and Criminal Fraud

The Hon. Jed. S. Rakoff, a judge of the U.S. District Court for the Southern District of New York, has written a fascinating essay for the New York Review of Books entitled "The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?"

The title explains the theme well enough.

I'll just quote one bit of what he says. He observes that the Dept. of Justice has argued that it couldn't secure convictions in many cases of apparent fraud by top bank officials because it is difficult to prove the officials knew what their underlings were doing.

This inspires Rakoff to cite a recent statement of the doctrine of "willful blindness."

"Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances."

Global-Tech Appliances Inc. v. SEB S.A. (2011).

Rakoff's point is that (a) such blindness is not a defense at law, but (b) in offering its justifications for the rarity of prosecutions, the Department of Justice seems to presume that it is.

More broadly, "[T]he Department of Justice has never taken the position that all the top executives involved in the events leading up to the financial crisis were innocent; rather it has offered one or another excuse for not criminally prosecuting them -- excuses that, on inspection, appear unconvincing."

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