Monday, March 17, 2008

What do needles and vials in Vegas have in common with Jeff Skilling's appeal?

(Posted by Nancy Rapoport) There's a local scandal a'brewin' in Las Vegas, where several medical centers stand accused of having reused needles and single-use vials in an effort to cut costs--see, e.g., here. Unfortunately, the reuse of needles and vials carries with it the risk of such diseases as hepatitis C and HIV. Here in Las Vegas, several of us have been asking ourselves how health professionals could possibly have gone along with orders to reuse needles and vials, knowing the potential health risks involved. Now Jeff Skilling's lawyers are alleging that the Enron prosecutors deliberately withheld potentially exculpatory evidence during his trial (see, e.g., here, here, here, and here). If these allegations are true, why would the prosecutors do something so obviously dumb and ultimately counterproductive? Personally, I think it's because our parents were right: we tend to play follow-the-leader, especially when we're under pressure. Group norms are a lot more powerful than we tend to pretend that they are, and rules (ethics rules, caselaw, even the fear of sanctions) are not as powerful as deterrents as peer pressure is as a motivator for action. Peer pressure acts in the now, and deterrents are for a later time and place. If the suppression of exculpatory evidence was on as large a scale as Skilling's brief contends, then it wasn't a one-shot action by a rogue prosecutor; instead, it was a team effort to cheat the justice system. As long as we're talking about group behavior, let's throw a little cognitive dissonance into the mix as well: perhaps the prosecutors, having worked so hard on these prosecutions, really wanted to ensure the win, so they talked themselves into withholding exculpatory evidence "for the greater good" of getting a conviction. All of this is conjecture on my part. We don't know enough yet to know what really happened, although things look pretty bad for the prosecutors. My point is that people are good at fooling themselves into doing things that they know are wrong, and groups of people are very good at egging each other on to turn these individual bad decisions into new, and very bad, group norms. From those incrementally bad decisions, we get convictions that may get overturned and people walking into health care facilities hoping to get screened for illnesses and walking out with serious and incurable diseases. All for what? For the sake of saving short-term costs without thinking of the larger, long-term ones. Hey, wait: wasn't that the problem with Enron in the first place?

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Comments

Great post, Nancy, and thanks. I would not have thought of this parallel. One answer to the question in your title: the common denominator is the city in which Nancy Rapoport lived when all the bad stuff went down. But I don't really blame you for everything: universal blame for matters totally out of your control would only make sense if you were still a law dean.

Posted by: Alan Childress | Mar 17, 2008 3:11:26 PM

In order to reconcile the possible prosecutorial abuse here -- if that is what in fact was going on here -- with the present Enron story, might we all need to re-think the entire Enron story?

Posted by: Reaching a different conclusion? | Mar 18, 2008 7:54:17 AM

The basics of the Enron story--the hubris and greed, the effects of sociological and psychological pressures on "normal" humans--stay the same. We'll just get to add the prosecutors to the list of people who can tell themselves that they were just "doing their jobs."

Posted by: Nancy Rapoport | Mar 19, 2008 12:04:11 PM

Why does it stay the same? For example, what if Fastow was lying at trial about the secret side deals and the government knew it? If that happened, then what proof presented by the government can we believe? (And, also, can you give me an example of this hubris and greed, at least that has been proven?) Once the present story about Enron starts unwinding, such as by eliminating the corner stone of that story -- cheating by using LJM to execute phony sales -- then it could be like the famous death spiral slide used by the government at the Skilling and Lay trial, except this time its the present Enron story that is falling apart.

Posted by: Reaching a different conclusion? | Mar 19, 2008 5:43:45 PM

Ah, I see you appeared in a documentary that trashed Enron, and have a book that might do the same? Might that be why the story stays the same?

Posted by: Reaching a different conclusion? | Mar 24, 2008 7:07:42 AM

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