There is a pretty straightforward solution. I'll leave to the reader whether or not it is a good one.
Redefine the crimes so they are easier to prove. In many cases that is going to involve moving from a mens rea (guilty mental state) of intentionally to recklessly, negligently or even eliminating mens rea altogether and just requiring an actus reus (guilty act). In some cases that might mean criminalizing more acts of omission instead of requiring proof of an overt bad act.
I want to be clear that this wouldn't be costless. It goes against much our existing framework for what makes people criminals. It would increase the chance that someone who made honest mistakes would be criminally punished. But remember Blackstone said that it is better for ten guilty men to go free than one man suffer, not one hundred, not one thousand and certainly not all the guilty men. And he was writing in an era when all felonies were capital crimes.
A small percentage of murderers getting off on technicalities is something a society can live with, even be proud of in a strange way, but when the exception swallows the rule that society is playing with fire.
I think that's a much bigger crime than anything financiers have supposedly committed.
Also what crime were you accusing me of having committed? Unlawful proposing of legislation Morgante doesn't like?
(GP wasn't claiming that you were literally committing a crime, rather suggesting that making it easier to convict innocent people would be a "crime" in a rhetorical sense)
Maybe it's working perfectly to protect financiers from being prosecuted for immoral but legal acts.
If I'm a superqualified, incredibly careful, good-guy explosives chemist, I still don't get to whip up a batch of Octol in my garage. The law deems explosives manufacture an inherently dangerous activity subject to strict liability. No mens rea needed, intent is irrelevant, conduct is all.
Strict liability principles have worked fairly well. Maybe they're worth trying in the financial sphere. I wonder how we would define an inherently dangerous financial activity?
People who steal millions or billions can hire an army of lawyers that can bring so many expert witnesses that can make the jury doubt in the existence of the Sun beyond a shadow of a doubt.
Several years ago there was a case that a guy got caught speeding, he petitioned the laser speedometer thingie to be sent to a impartial lab for testing on his own dime and got enough expert witnesses to rip that thing to shreds claiming that the device was inherently flawed and that the police didn't calibrate it and maintain it properly including leaving it locked in the car where the high temperatures could affect it's accuracy. He then also went own and brought evidence that other police equipment like the speed tracking radar might not be accurate on his car because of it's design and the fact that it was build of composite materials and not metal which what the speed tracking radars they use are calibrated for.
This case and several like it combined lead to a sweep of people appealing every speeding ticket which eventually got a law passed that every speed enforcement system which gets certified by the local standards institution cannot be brought to question in court.
When you drive a car with 5 or 6 zero's in it's price tag you probably have 10 more zero's in your bank account, which means you can spend allot of money on casting doubt on everything from the devices that the polices uses to the competency of their operators.
If you are a guy who got speeding in a 2006 Jetta? well pay the fine.
So while I can understand how a case involving complex financial fraud can be complicated I'm also quite aware just how easy it is to complicate things, I work for a consultancy which means I work with people who's their definition is to shuffle shit out of their mouth until the case gets complicated enough to warrant the hefty price tag they want to charge for that work, 10,000$ an hour lawyers should be able to bring that to a whole new level.
--- Edit for clarity.
Yeah, color me surprised that this results in weak juries.
Change the jury system/procedure to something better designed to generate trustworthy outputs. It seems simple enough in concept and there are many improvements that can be trivially suggested to improve the system even if we retained the idea of picking N people from the general population.
These people are common thieves on an epic scale. They steal money, yes, but stability, security, futures, homes, and so on. But defense attorneys take the opportunity to make things seem complicated.
Just dumb it down for them.
The former top justice official is on record stating they don't prosecute becuase they fear systemic risk, ie too big to jail, too big to fail, all just mottos and lies to let your fellow country club members off the hook.
Libor fraud? Pass. Money laundering for drug cartels? Pass.
Would you believe it just if someone robbed you, was caught and had a pay a fine of half the amount they took?
The government essentially allows criminal fraud by the powerful and then takes their cut of the profits, meanwhile the weak and poor continue to suffer, but luckily we got intellectuals who can explain away how its all too complicated.
Complete and utter bullshit.
The response from the Justice Department seems to be, instead of failing at doing the same thing over-and-over, let's do a different, simpler thing. I agree that is not a good thing. But I don't think it's reasonable to argue they should keep doing the same thing over-and-over, expecting failure. And I don't have enough insight into the problem to say how they could successfully prosecute these complex cases.