When people outside the financial sector learn what I do, they generally ask two things: when will the economy improve, and why hasn't anyone gone to jail yet for the financial crisis.
I don't have the predictive analytics, or the hubris, to answer their first question. But I do have some new insights-new to me, anyway-into the second.
Recently, I spent two and a half weeks as a juror on a criminal assault trial. The case mainly involved teenagers from a rough neighborhood in Washington Heights, in the northern reaches of Manhattan. We acquitted two of the three defendants and cleared the third of the most serious charges he faced. I'm not sure any of them was innocent, but that's different from not being proven guilty. The government's evidence was generally flimsy and uncorroborated, and in some cases the wrong charges seemed to have been brought. Had we been asked to consider lesser degrees of assault in some of the counts, for example, the prosecution might have gotten more of the guilty verdicts it wanted.
In this country, the burden of proof in criminal cases is exceptionally high, and I'm not sure how many people truly appreciate that until they get a live, close-up view of the justice system. (I certainly didn't, and I consider myself a student of American civics.) The case I sat through attracted no headlines. The courtroom, though large, was mostly empty; the trial, though longer than my co-workers probably would have liked, was relatively brief; the defense lawyers, though capable, did not come across as being particularly expensive. And still, aside from two counts where the proof was rock solid, the government failed to convince the jury that it had proven its case.
I certainly don't mean this to imply that anyone should accept a cop-out, but presuming that prosecutors still intend to go after the big names one might tie to the financial crisis, imagine the pressure, the attention, the months or years of proceedings, the armies of lawyers on the other side with unlimited resources for a strong defense. Think of the reams of briefings clogging up the court system, and the mounds of documentation tied to transactions entered into before the crisis, which likely wouldn't look any less confusing today than they looked at the time they were executed. I'm suddenly a bit more, though not entirely, sympathetic to the temptation for regulators to settle cases like the one against former Countrywide CEO Angelo Mozilo, who paid a $22.5 million penalty but made no admission of guilt.
As my fellow jurors and I were polled on our verdicts, I thought a lot about our legal system, which for all its flaws was designed brilliantly. I thought of the young men at the defense table and the young men who testified against them. They live less than 13 miles from Wall Street, in a place where life can be very tough and police encounters routine. My daughter is not yet in kindergarten and already she has more advantages than some of these young men ever may receive. Reflecting on all this, I had to fight back tears as the verdicts were read.
Might my eyes well up the same way over a criminal trial tied to the financial crisis? Well, it's possible. If the government failed to prove its case, then a finding of not guilty would reinforce my respect for the tenets of our justice system, which would be meaningful to me. And of course if prosecutors proved their case and won a guilty verdict, then that's justice, too-and reason to feel a deep sense of shame for people who would seem to have had every conceivable advantage, and wasted it.
Heather Landy is the editor-in-chief of American Banker Magazine. This article appears in the April issue, viewable here.