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Truthdigger of the Week: Judge Jed Rakoff

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Posted on Dec 22, 2013
Composite image: Handout / Mary Altaffer, AP

By Alexander Reed Kelly

(Page 2)

Thirdly and finally, the last 30 years have seen a steady shift from prosecuting individuals to prosecuting companies. The methods used to pursue each aim are different, Rakoff explains. If you suspect fraud at the top of the company, you build a case by beginning with someone at the bottom who is suspected of involvement and work your way up. “But if your priority is prosecuting the company, a different scenario takes place,” Rakoff writes in The New York Review of Books.

“Early in the investigation, you invite in counsel to the company and explain to him or her why you suspect fraud. He or she responds by assuring you that the company wants to cooperate and do the right thing, and to that end the company has hired a former assistant US attorney, now a partner at a respected law firm, to do an internal investigation. The company’s counsel asks you to defer your investigation until the company’s own internal investigation is completed, on the condition that the company will share its results with you. In order to save time and resources, you agree.”

“Six months later the company’s counsel returns, with a detailed report showing that mistakes were made but that the company is now intent on correcting them. You and the company then agree that the company will enter into a deferred prosecution agreement that couples some immediate fines with the imposition of expensive but internal prophylactic measures. For all practical purposes the case is now over. You are happy because you believe that you have helped prevent future crimes; the company is happy because it has avoided a devastating indictment; and perhaps the happiest of all are the executives, or former executives, who actually committed the underlying misconduct, for they are left untouched.” Rakoff says this is not the best way to proceed. The “internal compliance measures” that result “are often little more than window-dressing.”

The issue here is the failure of those charged with governing to govern when it is needed most, in the face of “colossal fraud” that undoes the lives of millions of citizens and harms society as a whole by reorganizing it in a depressing direction. These “weaknesses in our prosecutorial system,” he says, “need to be addressed. Praise The New York Review of Books for publishing those important words. And for taking his commitment to public service beyond the mere execution of his office, we honor Judge Jed Rakoff as our Truthdigger of the Week.

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