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Willful Blindness Is No Defense

Posted: 10/06/11 06:18 PM ET

Margaret Heffernan's recent book, Willful Blindness: Why We Ignore the Obvious at Our Peril, states that she "first encountered the idea of willful blindness when [she] read the transcript of the trial of Jeffrey Skilling and Kenneth Lay" and read the willful blindness jury instruction. She explores the many reasons for willful blindness and profiles courageous individuals who saw the facts.

In 2011, the U.S. Supreme Court discussed the legal aspects of "willful blindness" in deciding Global-Tech Appliances, Inc. v. SEB S.A. This case involved patent infringement. The majority opinion noted that "The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances... [T]wo basic requirements [are]: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts... "

Following the Global-Tech decision the U.S. Court of Appeals for the Fifth Circuit reviewed the appropriateness of the willful blindness, "deliberate ignorance," jury instruction in U.S. v. Barrera. This instruction reads:

"You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of a defendant cannot be established by demonstrating that a defendant was negligent, careless or foolish, knowledge can be inferred if the defendant deliberately blinded himself or herself to the existence of a fact."

The Fifth Circuit stated that the deliberate ignorance instruction is rarely given since "a jury might convict the defendant on a lesser negligence standard -- the defendant should have been aware of the illegal conduct." This case involved a charge of conspiring to defraud a federal agency with fraudulent claims for payment.

All the paperwork came to the defendant for her signature and she was ultimately responsible for compliance with federal law. The defendant stated that she relied upon her staff to submit accurate documents and did not independently verify the information. However, suspicious circumstances, a plumbing company invoice for asphalt repairs combined with blind reliance on her employees and her professed lack of knowledge, made the jury instruction appropriate. The Court wrote that "denial of knowledge, alone, may be insufficient to warrant a deliberate ignorance instruction." However, shifting the blame to her employees and disclaiming actual knowledge "placed her subjective awareness at issue."

These recent decisions, and many others, require an executive to investigate suspicious circumstances. Statements such as "don't tell me how you did it" will not be a shield. Additionally, blindly signing documents invites disaster. As Heffernan concludes, "As all wisdom does, seeing starts with simple questions: What could I know, should I know, that I don't know? Just what am I missing here?"