Too Hard

I couldn’t help noticing what Matt Taibbi was really saying in this latest installment of his very insightful musings on Wall Street criminality.

It’s very hard work to get the bad guys when they’re rich.  Too hard.

But on this one Taibbi’s naive.  He’s following an approved narrative of the justice system that is almost entirely mythology.

You make one misstep, and the whole case goes away – in this case, 10 years of work by God knows how many lawyers and investigators goes down the drain, with the snap of a finger. Imagine the last time you lost a paper thanks to a computer error, multiply that feeling by about 10 billion, and you might get close to grasping the horror of the DOJ prosecutors in this case this week.
  The “horror” of a whole case going away because of a single “misstep” is what happens to Plaintiff lawyers representing lone individuals, not DoJ lawyers representing the government.  Except that often for Plaintiff lawyers there isn’t even a misstep.  The case just “goes away” because no one wants to hear it, and individuals aren’t very important to judges.  Among the personal injury Plaintiff’s bar it is considered a victory just to get to trial.  Judges toss their cases beforehand, or at the close of opening statements, or at the close of proof, or after the verdict comes in and it’s “too high”.  Judges never do this to government lawyers.  And it’s not because they’re “better lawyers”, either, although that’s another part of the approved narrative that Taibbi should be questioning:
There are two important reasons why Wall Street defendants tend to slink out of convictions more easily than, say, drug dealers or burglars. Both reasons showed loudly in this case.

One is obvious. The Wall Street types have better lawyers. They don’t miss anything and they all have gigantic balls (or are paid to have them, anyway). In this case, who knows, the court might even have been technically right in its decision. But it needed to be led there by lawyers with the skill to pull it off.


Let’s stipulate that it’s a lot harder to convict people who put up a good fight than other people who don’t, and that the wealthy are way over-represented in the former category and the “not wealthy” are way over-represented in the latter.  That is hardly the point.  The feds went after Conrad Black with a vengeance and got him.  The case was “crazy complex” (also meritless, but that’s another subject).  I’m sure Conrad Black had very good – or at any rate very expensive – lawyers. 

The point is, when the feds want to get someone they can.  In Conrad Black’s case they wanted to.  In the Wall Street cases they don’t want to.  The likely reason for the difference is that the New York City based prosecutors, judges, defendants and their lawyers are all drinking from the same public trough.  They are much more like each other than any of them is like a street thug or a drug dealer.  They don’t rob people and kill them; they drain them under color of law and oppress them.

At some point that becomes a distinction without a difference, of course.  The Marquis St. Evremonde doesn’t deliberately rob and kill, either:

Marquis St. Evrémonde heads for his Chateaux at the usual, break-neck pace. Although most peasants scatter in terror, his carriage runs over a little child, that child being one of Gaspard’s. The Marquis shows no remorse at the sight of the crushed body—inquiring whether his horses are alright, and throwing a gold coin to the despairing father.

We like Dickens here at Lawyers on Strike.  He captured things perfectly through stories that we often have trouble making explicit.

Here’s the truth, Matt Taibbi.  The judges on the 2nd circuit wanted to be lenient with those particular defendants.  The outcome had nothing to do with their attorneys’ skill; rather, the defendants had attorneys who belonged to the same club as themselves and the judges.  And the prosecutors don’t fight that hard because they belong to the club, too.  Or want to.  Or soon will. 

Mary Jo White was the United States Attorney for the Southern District of New York – that is, New York City.  She currently heads up the Securities and Exchange Commission.  In between, she “worked”, no doubt with an impressive salary, for a law firm in New York City that defended the same class of people she is now in charge of regulating and was formerly in charge of prosecuting. 

And that is why it is “too hard” to get the Wall Street criminals.


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Filed under financial crisis, Media incompetence/bias

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