Commentary on Second Circuit Opinion in AIG and General Re Execs Case

Reported here is the decision in the Ferguson, et. al. case, in which the Second Circuit vacated the convictions. Commentary:

• It's a 77 page court decision and having several university degrees would assist in understanding the technical aspects of the business workings described here.  One can only imagine the difficulty faced in explaining this to a lay jury.
• The court finds two errors by the district court, namely that it: "1) abused its discretion by admitting the stock-price data, and 2) issued a jury instruction that directed the verdict on causation."
• Part of the problem with the admission of the stock-price data was that the "[a]lthough the evidence was admitted only to show materiality, the government exploited it to emphasize the losses caused by the transaction."
• With respect to the jury instruction, the court noted that "[i]n seeking to accommodate the reasonable phrasings offered by the various parties, the court ended up with a charge that allowed the jury to convict without finding causation."
• The defendants had not objected to the causation instruction, but the court found the error as plain error. 
• The court did not find several other errors that were claimed by the defendants.
• The Global Tech (see here) decision of the Supreme Court is referenced, but it offers no assistance to these defendants.
• The court notes that the case depended heavily on the testimony of two cooperating witnesses and that their testimony was "bolstered by contemporaneous recordings of calls involving" one of them. But the court also later states with respect to one of these witnesses -  "Certain factual inconsistencies in Napier's testimony are sufficiently obvious to raise an eyebow, but most of the arguments are meritless."
• The court states: " Since we are vacating the judgments on the grounds discussed above, we need not reconcile these cases or decide whether the prosecution's actions amounted to misconduct. . . . No doubt it is dangerous for prosecutors to ignore serious red flags that a witness is lying, and the government will doubtless approach Napier's revised recollections with a more skeptical eye on remand." The court does note that it would have been difficult for the government to verify the facts and that there was cross-examination and summation "which resolved the credibility issue against the defendants."
• In light of this, would it really be the "right" action to retry this case?  Hasn't the cost (including emotional cost) to the clients been sufficient by this prosecution?  I can't help but recall the sentencing hearing of one of the accused individuals here, when the judge stated,  "Ms. Monrad was not motivated by personal gain."
• To the government - please spend our money wisely.

(esp)