Tuesday, March 15, 2005

Professor Bainbridge professes no surprise at the verdict in the Bernie Ebbers trial. I'd agree, but perhaps for a different reason.

Ebbers wasn't convicted because the prosecution proved beyond a reasonable doubt that Ebbers knew/ordered/participated in the fraud. How could he be, with only the uncorroborated testimony from Scott Sullivan, the proven-to-lie-and-cheat CFO, who was testifying in order to lighten his own sentence? There were no e-mails, no letters, no witnesses, no nothing to indicate Ebbers was involved other than what Sullivan could have made up in his own mind twenty minutes before he started testifying. Ebbers' defense had an impossible task, having to prove a negative. That shouldn't have been enough to conclude that without a reasonable doubt that Ebbers was involved as the prosecution alleged.

No, I think Ebbers was convicted solely because the jury wanted to smack somebody upside the head and it was Ebbers' head that got smacked. Call it jury nullification in reverse, where the jury convicts without having the grounds to do so. Ebbers was portrayed - rightly or wrongly - as the poster child of all that was wrong with the 90s. The jury was encouraged to smack him and they did.

As an aside, for another example of reverse jury nullification, check out this FORTUNE article on Frank Quattrone, who was convicted despite a paucity of evidence against him...