Saturday, April 21, 2007

Willful Blindness

Michele Berry at Crimprof - has a fascinating post on a recent en banc decision from the Ninth Circuit.  The Heredia case is not a white collar case, but this decision will likely influence the white collar world.  With Ken Starr as one of the authors of the National Association of Criminal Defense Lawyers (NACDL) amici briefs, this case was certainly not a lightweight in the legal field.

The government in a drug case sought to have the jury instructed on willful blindness. This court was thus left to decide the fate of the long established precedent of the Jewell case.  Jewell, a case from 1976, is well recognized with many referring to the willful blindness instruction as the "Jewell Instruction."  And although the en banc court does not overturn the Jewell decision, it does reverse a panel opinion.   The court in Heredia states, "while the particular form of the instruction can vary, it must, at a minimum, contain the two prongs of suspicion and deliberate avoidance."  A concurrence focuses on "motive," and a 4-person dissent demonstrates the tenuous nature of this decision.  One walks away from this case realizing that the standard for giving a "willful blindness" instruction can be extremely low.

Willful blindness comes up in cases beyond drug offenses and it will be interesting to see if this becomes a prominent issue in white collar cases.

(esp) (w/ a hat tip to Stephanie Martz)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/04/ignorance_of_th.html

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Although I can understand why some prosecutors may wish to instruct on Willfull Blindness to a jury in some white collar cases, I believe juries should also be instructed that the defendent in such a case "may" not have actually acted in a manner did so with willfull blindness. In many cases subordinates are very fearful and often misled by supervisors with power and tenure. In some cases, they are simply NOT trained in proper procedures or process, and thusly end up making bad decisions, that had they been properly trained, they would not have made.

EXAMPLE: A junior government official is NOT trained in federal contracting or Contracting Officer Technical Representative (COTR) duties and responsibilities, but is still ordered to perform this function without training, and unwittingly signs an invoice for a firm that he should not have signed. This individual is later charged with a crime of assisting the vendor, in defrauding the government. The individual suspected the invoice was not quite correct and questioned his superior, who said to the junior official not to worry about it--simply be a team player. Did this junior official actually commit a crime, or was he misled by his superior and lacked the substantive training needed to know right from wrong?

All too often federal prosecutors will seek any angle to convict an innocent person, even when the facts of a case demonstrate the person was not guilty. Shame on any prosecutor for doing this.

Posted by: Robert Knauer CPCM CPPO | Nov 13, 2009 8:48:24 AM

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