A mistrial was declared by the judge presiding over the criminal trial of Jitesh Thakkar, the alleged programmer of the software used by purported “Flash Crash” spoofer Navinder Sarao. The declaration followed the failure of the jury hearing the case to reach an unanimous verdict; the jury voted 10 – 2 in favor of acquitting Mr. Thakkar of two counts of aiding and abetting spoofing. Previously, the judge – the Hon. Robert Gettleman of the US District Court of the Northern District of Illinois – had acquitted Mr. Thakkar of the criminal charge of conspiracy to commit spoofing. The judge instructed the Department of Justice to determine whether it wanted to proceed with another trial of Mr. Thakkar or forego prosecution within two weeks. (Click here for additional background regarding this criminal prosecution in the article “Alleged Programmer for Flash Crash Spoofer Acquitted of Criminal Conspiracy Charge; Aiding and Abetting Allegations Pending” in the April 7, 2018 edition ofBridging the Week.)
My View: The outcome of a hung jury in this case was surprising, but the failure of 10 jurors to vote for Mr. Thakkar’s conviction for aiding and abetting Mr. Sarao’s spoofing is significant. Clearly, for the 10 jurors, the DOJ did not provide sufficient proof beyond a reasonable doubt that Mr. Thakkar programmed software with knowledge that Mr. Sarao intended to use such software for illicit spoofing purposes. Previously, the government had endeavored to have the jury convict Mr. Thakkar on a lesser standard – i.e., if they found he had a strong suspicion that the relevant software would be used for spoofing, but he purposely avoided confirming that fact. However, the judge rejected this “Ostrich Instruction.”
Given the apparent weakness of the DOJ’s evidence and the challenge of flipping 10 jurors, it seems an inappropriate use of the public purse to retry Mr. Thakkar.