Ken Lay's Judge Got it Right

I know this is difficult for many of you to accept, and I'm not arguing that its logical outside of the bounds of the law, but U.S. District Judge Simeon Lake got it right Tuesday when he vacated the conviction of former Enron Chairman Kenneth Lay as a result of Lay's post-conviction, pre-sentencing death in July. Although federal prosecutors had asked Judge Lake to delay his ruling until Congress could act on a request by the Justice Department to change the law, he refused to do so and simply applied the law as it now stands.

Tough luck for the feds. Tough luck for the many victims of Enron who were hoping that they could more easily tap into Lay's already-diminished coffers. Tough luck for headline writers who now can't declare that Lay is a "convicted felon." But it is not a judge's role to make things more convenient for one party to a case. And the request by the Justice Department to have Congress change the law in the middle of this case-- to change the rules in the middle of a game, if you will-- was nothing short of pathetic. I have no problem with a federal rule that declares that a man who is convicted by a jury beyond a reasonable doubt may not avoid that conviction even in death (unless his estate successfully appeals the conviction). But that wasn't the rule when Ken Lay died in his bathroom on July 5th.

Judge Lake's ruling does not end the government's pursuit of whatever assets the Lay estate still has. Although the feds now cannot pursue restitution as part of a criminal case, the feds are free to try to pursue money as part of a civil action against the estate. And now that Lay is gone, it is more likely that the representatives of his estate and federal lawyers can work together on some sort of a settlement that both ensures some modicum of financial security for Lay's wife but also gives back to the many victims of Enron at least a little money.

The problem with that scenario, of course, is that so many people are owed so much by Enron's bad actors that whatever money the feds could get from the state would be a small fraction of what is truly owed. The rest of that money has vanished, into thin air, into real estate deals and luxury living and all the other trappings of wealth and excess that enveloped the gang at Enron before their own greed and malfeasance took them and the company down. Sometimes, the story doesn't end well. It didn't for Lay. And it won't for his victims.

By Andrew Cohen |  October 18, 2006; 9:00 AM ET
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Comments

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Hoo boy, Andrew. You just opened a can of worms. It will be interesting to see what responses are the most vitrolic, the leftie Lay-haters, or the rightie anything-the-courts-do-is-wrong types.

Posted by: CT | October 18, 2006 10:55 AM

Those who have a legitimate claim against Ken Lay's estate may actually end up with more faster as there are now fewer ways for lawyers to battle with each other, pocketing large fees for doing so.

Posted by: John Blackwell | October 18, 2006 02:24 PM

I think Judge Lay got it wrong. Ken Lay was convicted by a jury of his peers. His estate has the right to process his personal appeal. It is not the estate's appeal.
His conviction under a "beyond a reasonable doubt" standard makes civil remedies much easier as they are based on a "preponderance of evidence" rule, less weighty than the other.
The prosecution should challenge Lake's ruling. Otherwise, his estate can play games with all of the financially damaged victims by hiding assets as OJ Simpson did.
Is that law or justice?

Posted by: bill goldman | October 18, 2006 02:37 PM

If the judge really wanted to he could have overturned this and fashioned a new rule. It is within the scope of the judicial discretion Andrew is always pushing. The abatement doctrine is a judicial rule that apparently varies by circuit, based on the imporance of appellate review. I do not understand why the case could not continue on appeals, you do not need a live Mr. Lay for that, his estate could act on his behalf.

That would give the Court of Appeals a chance to rule upon and vacate, if appropriate, the conviction. And then he could be pardoned, either by God or the President -- assuming they are not one and the same.

As a commentator pointed out: "Interestingly, this is true even though appellate review of a criminal conviction, Professor Cavallaro writes, "was not at common law and is not now a necessary element of due process of law."

Check this link: http://blogs.wsj.com/law/2006/07/07/all-youve-ever-wanted-to-know-about-abatement/http://blogs.wsj.com/law/2006/07/07/all-youve-ever-wanted-to-know-about-abatement/

I, on the other hand, am simply happy that a judge opted for stability and precedent, even if the outcome is stupid, an injustice that renders the whole trial in jest.

Posted by: Constituionalist | October 18, 2006 05:14 PM

It seems that a law degree is a sophisticated assasination tool for common sense. What kind of idiot would buy the basic notion that a man who cannot defend himself is sentencable? Then again, the Fascists love this crap. Kill habeus corpos, why stop there? These are sick times, run by over-educated morally depraved lowlife.

Posted by: David Ellis | October 18, 2006 10:56 PM

Sorry, I meant habeus corpus. Still can't type......

Posted by: David Ellis | October 18, 2006 11:03 PM

It's habeas corpus. And it may be gone, as of yesterday.

Posted by: attorneyofrecord | October 18, 2006 11:52 PM

This is funny:

"And the request by the Justice Department to have Congress change the law in the middle of this case-- to change the rules in the middle of a game, if you will-- was nothing short of pathetic. I have no problem with a federal rule that declares that a man who is convicted by a jury beyond a reasonable doubt may not avoid that conviction even in death (unless his estate successfully appeals the conviction). But that wasn't the rule when Ken Lay died in his bathroom on July 5th."

You don't mind changing the rule, you just dont want to "change the rules in the middle of the game." Are you saying that Lay's heart was entitled to rely on the law as it existed at the time it quit beating? The knock on changing rules "in the middle of the game" is that one party has relied on those rules at the start of the game and it is unfair to change them at that point. Unless you think Lay had a heart attack to take advantage of the rule, this makes no sense.

Posted by: MC | October 19, 2006 12:56 AM

A classic example of those with "tentacles of influence" ,at each level of government are spared that which little people are not.

Posted by: applegear | October 21, 2006 09:39 AM

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