Tuesday, September 23, 2014

Willful blindness to red flags

More than a few red flags.

From a defense law firm website:
Actual knowledge and willful blindness are not mutually exclusive; if the prosecutor presents sufficient evidence to support both, a jury can be charged on alternative theories of actual knowledge and willful blindness, giving the prosecutor two bites of the apple.

In willful blindness cases, white-collar prosecutors often point to “red flags” which they claim should have alerted the defendant to criminal activity. A failure to ask the right questions in the face of these clues can indicate deliberate avoidance of knowledge to a prosecutor, court or jury. 
From Columbia Law School CLS Blue Sky Blog:
The Supreme Court described the two basic requirements [of willful blindness] as:  the defendant must 
(i) subjectively believe that there is a high probability that a fact exists; and 
(ii) take deliberate actions to avoid learning of that fact.  
According to the Court, this two-pronged definition gives willful blindness “an appropriately limited scope that surpasses recklessness and negligence”.  Thus, in the context of fiduciary liability, we’re talking “bad faith”.

Now, how is this applied to Toyota?
Robert Ruginis, the husband of an SUA victim, writes to Mr. Kelley and quotes Toyota's "we are very good at turning a blind eye" letter:

"The accelerator pedal was thoroughly inspected and found to move smoothly with no 
restrictions or binding. There was no interference or obstruction found with the operation 
of the accelerator pedal. When the accelerator pedal was released it would always return 
to the idle position. The brake components were in good condition with no damage or 
leaks. The floor mat was properly anchored. The vehicle was test driven for 16 miles, at 
various speeds and road conditions with several accelerating and braking maneuvers 
being conducted and all systems performed properly with no unusual or unexpected 

reactions observed."

Toyota then said:
"Based on our inspection of your vehicle it has been determined the incident was not the result of any type of manufacturing or design defect.”

"I followed up with a company representative to ask about this obvious omission [of the damning EDR readout from the letter]. Toyota’s representative Ronald Inton, while conceding that the results of the EDR readout were not considered, refused to address the glaring conflict between the black box evidence, which contemporaneously affirmed my wife’s experience in the Corolla, and the inspector’s observations gathered on a short test drive."

Is this willful blindness?

Is it Toyota's intent?  ...if the incriminating EDR readout is not mentioned in the letter, it takes on a ghostly "unofficial"pallor, eventually fading from the legal landscape altogether.

Kudos to Mr. Ruginis for not allowing Toyota to get away with arranging that.