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http://www.guardian.co.uk/business/story/0,3604,1208340,00.html Truth, justice and corporate sway Nomi Prins 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 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 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. Guardian Unlimited
© Guardian Newspapers Limited 2004 |
