Throw Execs Who 'Caused Crisis' in Jail? It's Complicated

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Fat cat. Got away with murder. Knew it was a house of cards. Didn't warn. Outrageous risk. Made off with his bonus.

Samuel Buell can practically hear the key phrases of the government's opening argument, were it to bring a banker to court on criminal charges tied to the financial crisis.

It's a good script, one "that might win you the first day of the trial," said Buell, who was the lead prosecutor on the Justice Department's Enron task force. But then he envisions what happens in the weeks, or months, that follow. Jurors, bogged down by the complexities of the situation they are being asked to weigh, distance their minds from the raw emotions that the case might have aroused at first. Indignation over what appears to have been a massive fraud gets replaced with incredulity, as the jury wonders if it could have been fraud when the entire financial system seemed in on the alleged deception.

"Any experienced prosecutor is looking at it like that, at what it's going to look like at the end of the trial," said Buell, now a law professor at Duke University.

Based on the dearth of criminal charges filed so far against banks directly involved in the crisis, it seems the government is reading the tea leaves pessimistically. Of course, big fraud-on-the-market cases can take years to build, new evidence still could come to light, and the secrecy surrounding criminal investigations makes it difficult to assess what prosecutors are doing even now. But Buell and other experts in white-collar crime said they would be surprised if at this point the government started rounding up bankers en masse to face criminal charges.

Where legal action against the industry does seem to be heating up is on the civil side, where penalties generally are less harsh but the standards of proof are easier to meet.

The Securities and Exchange Commission has notified Daniel Mudd, a former chief executive of Fannie Mae, and Richard Syron, a former CEO of Freddie Mac, that enforcement actions against them are in the works. And the Federal Deposit Insurance Corp. has sued Kerry Killinger and two other former executives of the failed Washington Mutual Bank, alleging gross negligence and breaches of fiduciary duty.

None of that is likely to appease an angry populace hungry for a criminal prosecution, however.

"I think the public suspects, probably rightly, that these people are close to invulnerable, in that you couldn't extract enough of a civil penalty to actually make a difference in the way they live their lives," said Barry Schwartz, a professor of social theory and social action in the psychology department at Swarthmore College.

Inflicting pain on those deemed responsible for a problem, Schwartz said, can be a way of validating the feelings of blame that arise from efforts to engage in causal analysis, which is the way people typically try to comfort themselves when they want to feel the world is a more predictable, controllable place.

The question for law enforcement agencies is whether the causal analysis is correct. And sorting that out requires detaching one's self from the kinds of emotions that have been tapped into with such great effect by the likes of Matt Taibbi, the writer who christened Goldman Sachs "a great vampire squid wrapped around the face of humanity" and who also wrote an article for Rolling Stone in February with the headline "Why Isn't Wall Street in Jail?" The filmmaker Charles Ferguson, whose compelling documentary "Insider Job" won an Oscar this year, struck a similar chord.

"If I had a weapon when I walked out of 'Inside Job,' I would have shot the first banker I saw, and I would have mowed down the economists, too," Schwartz said.

Presumably in that scenario, the hapless banker would not have been asked first whether he was from Wall Street or a community bank.

A taste of the indignation that community bankers feel over getting mixed in with big banks was shared last year in an American Banker opinion piece by Robert McKean, the retiring CEO of Albina Community Bancorp in Portland, Ore., who wrote a searing allegory in which he is beaten to a pulp: "As I try to look around, my big brother (his name is Wall Street) is leaning against the threshold of the door nursing bruised knuckles from bashing in my face; and a sprained toe from repeatedly kicking me once I was down."

The piece describes an outbreak of "domestic abuse" — surely a criminal behavior. But in an interview last week, McKean said he mainly blames the financial crisis on decades of decision-making by Congress. Excepting the behavior of "some bad actors out there," he said, he would stop short of accusing big banks of actual criminal activity.

The industry has not completely avoided charges of criminal behavior. The managers of two Bear Stearns Cos. hedge funds that were blamed for triggering the firm's demise were brought to trial in 2009. A Brooklyn, N.Y., jury found them not guilty. Lee Farkas, the former chairman of Taylor, Bean & Whitaker Mortgage Corp., was indicted last year for alleged fraud and is scheduled to go to trial April 4. But Farkas and Taylor Bean are not household names; the case, no matter its outcome, is unlikely to quench the public desire for vengeance against the industry.

If no other major criminal cases transpire, "that doesn't exonerate or not exonerate a particular industry" for its role in the crisis, said former federal prosecutor Joel Cohen, now a partner in the white-collar defense group at Gibson, Dunn & Crutcher LLP. "It just means that prosecutors found insufficient or no evidence" of criminal conduct.

"There's no such thing as the crime of causing a crisis," Cohen said. "There's a crime of insider trading, there are crimes of fraud, but we don't charge people for causing crises."

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