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How Prosecutorial Misconduct Is Like White Collar Crime

When I began my research into the Enron prosecutions more than a decade ago, I thought I would learn a lot about white collar crime. I was wrong.

What I did learn quite a bit about is prosecutorial misconduct. The big story of the Enron cases is the pervasive misconduct of the federal prosecutors. While we might debate if and what white collar crimes were committed by Enron executives, there is no question that the prosecutors of the Enron Task Force (ETF) used “questionable tactics” in their quest to “get scalps” at Enron (the quotes are from prosecutor, John Kroger).

My study of the Enron prosecutions has also led me to examine other white collar criminal cases. Therefore, even though there was little criminal activity at Enron, I have managed to learn a bit about white collar crime by studying other cases. What strikes me is how similar prosecutorial misconduct is to white collar crime in terms of how it tends to occur.

The myth of white collar crime among the American press and public is that it is a carefully considered, crafted, and implemented malevolent exercise by senior corporate executives. This is, of course, ridiculous. White collar crime, particularly among senior executives, tends to evolve as an escalating series of incrementally small deviations from accepted or prudent practice. Each incremental step, at the time, seems inconsequential and justifiable to the executive. However, at some point, the accumulated deviations are so great that they constitute an unethical or illegal practice. Often the executive never recognizes nor believes he has crossed a line; however, even in situations where the executive finally recognizes that he has gone too far, he often sees, or seeks, no path back.

To give federal prosecutors the benefit of the doubt, I suspect that prosecutorial misconduct occurs in a similar fashion. The prosecutors press for every advantage over the defendants, seeking to win at any cost. They deviate from ethical and legal practice in small steps. Each incremental deviation leads them farther and farther astray — the pursuit of justice is deserted entirely. What starts as petty attempts to throw roadblocks in the way of the defense team eventually leads to outright misconduct, such as witness intimidation and suppression of exculpatory evidence.

There are, of course, some notable differences between prosecutorial misconduct and white collar crime. While white collar crime is actually quite rare in the USA, prosecutorial misconduct has become embedded into American legal practice; indeed, the American federal courts and judges have become enablers of prosecutorial misconduct, seldom taking any actions at all to curtail it even when it is brought to their attention. And, of course, while white collar criminals often receive draconian punishments for their crimes, prosecutors seldom face any significant punishment at all, even in those rare cases when they are called to task for their misconduct.

And here is another difference between white collar crime and prosecutorial misconduct. You and I pay federal prosecutors with our taxes — they are committing their crimes directly on our dimes and in our names, that of “the people”. You and I are the ultimate enablers of prosecutorial misconduct!

Cara Ellison

2 Comments

  1. Absolutely, YES, on the federal prosecutor misconduct. But executives (and federal prosecutors) do not operate in a void. Also on our taxpayer dime is an entire constellation of federal financial regulators who looked the other way UNTIL it was time to convene Court TV. The stage play was carefully crafted to include only those who could most easily be scapegoated. The Tim Geithner -FRB network has yet to be included on the Hit List.

  2. I would be interested to read what you think of Worldcom, Adelphia and Tyco. The punishments doled out were very harsh too.
    Thanks.

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