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gavelEvidence of criminal intent can be hard to come by. A pair of highly unusual post-trial rulings by Judge Brian M. Cogan illustrates the challenges facing white-collar prosecutors seeking convictions for complex schemes.

Commentators have roundly criticized the Justice Department for the dearth of individual prosecutions for financial crimes after the 2008 financial crisis. Former Attorney General Eric Holder has said the Department lacked the evidence necessary to prove that specific individuals were responsible for specific decisions. See William D. Cohan, “A Clue to the Scarcity of Financial Crisis Prosecutions,” N.Y. Times (July 21, 2016). Others have suggested weak regulators failed to compile necessary information to support such prosecutions. See Gretchen Morgenson and Louise Story, “In Financial Crisis, No Prosecutions of Top Figures,” N.Y. Times (April 14, 2011). Finally, some have attributed the failure to the challenges in proving criminal intent for white-collar crime, particularly in the context of complex schemes.

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