I’ve written lately about the convictions of con men–one locally in Minneapolis, Tom Petters and of course, Bernie Madoff. As a criminal defense lawyer, I’ve represented con men in the past. In my last post I suggested that one of the reasons they are successful is that their “victims” are willing partners.

What?

I’m not talking about charitable foundations, elderly people, or naive people who didn’t understand what they were getting into. I’m thinking of those wealthy people that both these con men sought out at country clubs and business networks. These are people who usually investigate the way they spend their money carefully. But in the case of these scams, the investors didn’t look much at all.

Why? Greed is a big factor.

All of us want to “get in on” the inside track of investing to make a huge score that we couldn’t ordinarily get from our 401k’s. The con man offers that illusion and if questioned, even backs it up with phony numbers. Usually, these types of investors turn over every rock to make sure what they’re putting their money into is legitimate. But they didn’t do that.

Of course, the skill of a con man is to build up trust so that investors will specifically not check out the deal as carefully as they normally would do. Still, when greed starts to rise, any of us can ignore the safeguards we put into place to protect us.

The con man bears the blame for the crime but doesn’t it make sense that smart, savvy investors, driven by greed should bear some responsibility? Their greed led them to give the crooks their money without much questioning. Or maybe once the scam breaks open, we should make sure the naive and uninformed victims get compensated first with whatever’s left. The sophisticated investor goes to second place in the recovery.

I know this sounds opposite to every idea we have about victims and their rights but these scams are different crimes than others that could only occur because greedy people think they’re getting on the inside track to make big money. Shouldn’t they bear some responsibility?

What do you think? Should we treat these “victims’ differently?

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Last summer, a father played with his wife and three kids at a local amusement park. About midnight, they started to leave when seven men surrounded his daughterl, tapped her in the head with an inflatable bat and made comments. The 41 year old suburban father yelled at the group who then turned to attack him. Viciously, they hit and stomped him into unconsciousness before his family. He sustained permanent damages. It’s been covered several times by the StarTribune at www.startribune.com, Aug. 5,2009.

Yet the perpetrators, who pled guilty under a deal with the Scott County Attorney, received probation with about four months in the workhouse. The Victim and his family approved of the deal.

As is required in all felony cases in Minnesota, each man went through a pre-sentence investigation where most of them made excuses for what they did. “Wrong place at the wrong time” to describe how they “accidentally” got involved in the beating. Their defense lawyers continued by telling the sentencing judge the victim’s name hadn’t been released so the client couldn’t apologize and another complained of the “biased” media coverage against the client.

Having practiced as a defense lawyer for years, I’ve been in this exact spot many times: representing a person who has committed a reprehensible crime but still required, as the defense lawyer, to advocate for leniency. Let me tell you–it’s a tough spot to be in!!

Although most states have Victim’s Rights laws which give the victims an opportunity to participate in the resolution of cases, short of trial, I still feel sorry for many of them.

Is it the crush of caseloads that make it difficult for judges and prosecutors to get appropriate sentences, is the crowding of jails and prisons the reason? Are the defense lawyers too good for the prosecutors? Are we more worried about the defendant’s rights than the victim’s rights?

Here’s the irony: so many people were outraged by this incident and demanded tougher sentences however, as a country we imprison more people than almost all other countries. So, does simply “getting tough” solve the problem and give justice to the stomped man?

Let me know your thoughts or solutions.

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