VW engineer sentenced for boss' bidding shows that scapegoat defense never works

The defense of “I was just doing what my boss told me to” doesn’t work in court, as one engineer found out.

This past Friday, engineer James Liang got sentenced to 40 months in prison for his role in the Volkswagen emissions fraud scandal. As a Volkswagen engineer, Liang helped to develop the software that allowed the German automaker to cheat on federal emissions tests and emit up to 40 times the allowed levels of pollutants for a decade.

Being loyal to your boss will still send you to jail

In Liang’s defense, his lawyer said that Liang was not a “mastermind” but an employee who “blindly executed a misguided loyalty to his employer,” according to Reuters. The federal judge hearing Liang’s case didn’t buy this argument.

“Your cooperation and regret is noted, but it doesn’t excuse the conduct,” U.S. District Court Judge Sean Cox said, fining Liang for $200,000 and sentencing him to more than three years in prison. This is a harsher sentence than what federal prosecutors had recommended for Liang, who had reached a plea deal and had been cooperating with investigators for months.

The judge said the harsher sentence was a deterrent to anyone else who would think of a similar scheme.

“This sentence sends a strong message of deterrence to automotive engineers and executives who should think twice before knowingly breaking United States laws for the benefit of their employer,” acting U.S. Attorney Daniel L. Lemisch said about the ruling.

Liang’s sentencing has wider implications for the engineering industry at large, and serves as a reminder that coding is not a neutral activity. Software development is embedded with the biases of its creators, for good or ill purposes.

Liang’s fate also serves as a more reminder to not be blindly loyal to your employer. Go into your job with eyes open. If you recognize unethical behavior, take regular notes of what’s said or not said, so that you have evidence to show later to higher-ups like human resources, or in extreme cases, court.

There have been similar cases in the past that show that courts do not look kindly on the “my boss told me to do it” excuse.

In 2014, former Goldman Sachs banker Fabrice Tourre — who had bragged in emails to friends that he was the “Fabulous Fab” —  was fined $825,000 by the Securities and Exchange Commission and found liable for defrauding investors during the financial crisis by helping to create toxic mortgage securities. Tourre’s lawyers had argued that that the midlevel banker was not responsible for Goldman’s actions or the financial crisis, but it didn’t convince the court.

Keeping your head down and following orders is a weak defense when it comes time for judgment. It didn’t excuse Liang of his role in VW’s fraud, it didn’t absolve Tourre at Goldman Sachs, and it likely won’t excuse you.