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We, the Jury

Want to see Dick Fuld in prison stripes? Angelo Mozilo in solitary? Join the crowd. A conversation with top legal minds on who will and who won’t be prosecuted—and why.  
Execs behind bars

It’s the stuff of populist dreams: Dick Fuld clad in a prison jumpsuit, Angelo Mozilo bound in shackles, and John Thain penned in a concrete cell. Yet reality pales in comparison. For all the yelling and picketing, congressional hearings and subpoenas, very little has been done to address all the pent-up rage.

The problem isn’t a lack of targets. Hatred of financial executives comes cheap these days. Instead, we’re missing something bigger: a Leader (capital L) with the ego, hubris, and imagination to bring Wall Street to heel. The world of Ivan Boesky and Michael Milken had Rudy Giuliani. The Wall Street analyst scandal had Eliot Spitzer. Where is today’s Thomas Dewey, the crusading New York prosecutor who fought corruption in the 1930s? These men had their flaws, but they got the job done. President Barack Obama, New York State Attorney General Andrew Cuomo, and even Iowa Senator Chuck Grassley are trying. Government investigators have been scouring emails, deposing executives, and reviewing trading records at a host of major Wall Street firms. But so far, the results have been unsatisfying.

It doesn’t look like there’s going to be a new Wall Street sheriff riding into town anytime soon, so we decided to take the search for justice into our own hands. We turned to a panel of eight of the country’s legal experts, including U.S. Representative Barney Frank of Massachusetts, former U.S. Attorney General Dick Thornburgh, criminal defense lawyer Stanley Arkin, and, yes, former New York Governor Eliot Spitzer, who is on the atonement trail after consorting with prostitutes.

Our question was easy. When the myriad civil and criminal investigations of firms such as Wachovia Securities and UBS are over, who is likely to face criminal prosecution? The legal cases are difficult to construct, but some CEOs look more vulnerable than others. Countrywide’s Mozilo, whose company is accused of misleading investors about credit risks, is at the top of our list. Former Lehman Brothers chief Fuld—who, until the very last minute, was reassuring investors as well as the government that his company was on solid ground—isn’t far behind.

Still, our panelists believe that most current and former top executives are guilty not of criminal behavior but of poor judgment. “It’s surely hubris, but how is that actionable?” asks Arkin, a longtime defense attorney who recently represented clients in the Tyco International fraud case. The government needs to pick its targets wisely, adds Thornburgh. He points to Enron’s accountants. “Prosecutors and regulators have to be somewhat chastened by the Arthur Andersen case,” he says. “They better damn well have the law and their facts straight before they run a company out of business.”

If the executives do go to trial, look out. Justice depends upon the willingness of a jury to weigh facts without fear or favor. And it’s going to be difficult to find a group of people who are unaffected by the economic collapse. The law, therefore, is not the executives’ biggest enemy. Anger is.


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