Should Ken Lay Still Be Prosecuted?

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Ken Lay's death in July, it was assumed, meant the end of the criminal case against the former Enron chairman. But prosecutors want to change that. On Wednesday, they filed a a motion asking Judge Sim Lake to hold off on signing the paperwork vacating Lay's conviction on fraud and conspiracy charges until former Enron CEO Jeffrey Skilling is sentenced in late October. In the motion, prosecutors propose a new law that criminal cases not be abated when the defendant dies, as is current legal precedent. In an effort to also get a Congressional hearing on the proposal, copies were sent to the Speaker of the House and Vice President Dick Cheney.

In the motion, prosecutors argue that the current law is not fair to crime victims and "erases hard-won verdicts." The Enron task force wants the new law to be retroactive to July 1 — four days before Lay died. The proposal has sparked a hot legal debate among those involved in and observing the Enron case.

"This is the latest proof of how the lynch mob mentality that the Enron Task Force has incited and fueled, prevails over the rule of law," says Skilling's defense attorney Daniel M. Petrocelli. "The proposed legislation is openly unconstitutional. And the motion to the court asks the court in the starkest terms to participate in a knowing violation of the Constitution. I trust the court will reject the invitation."

While some attorneys, and victims of the Enron scandal, argue that letting Lay — even in death — off the hook is a miscarriage of justice, others say the proposal is mean-spirited. "It's a disguised attempt to punish Lay further — not to help crime victims," says attorney Joel Androphy, author of the legal text White Collar Crime. "It has no global purpose other than being vindictive." Even though the criminal case is over, Androphy points out, Enron victims will still be compensated, because Lay's estate will have to pay any civil judgments. He argues that the proposed law sends a message that the government could strip away other constitutional rights, from jury trials to Fifth Amendment protections. "Who knows what will be next," he says.

"They've done the impossible," says Houston attorney Brian Wice, referring to the Enron prosecutors. "They managed to get a death sentence in a non-capital case — and it's still not enough for them."

Former federal prosecutor Michael Wynne argues that the proposed law is a good idea. The rationale for abating convictions is that a defendant who dies does not have a chance to participate in the appeals process. But there is no new testimony during appeals, Wynne says — mostly reviewing written records and trial transcripts. "It's not as if the defendant himself is essential," Wynne says. "It's an aggressive move. It's not mean-spirited. They're just trying to preserve the conviction."

Still, some doubt that Congress will pass the new law — and, even if it does, whether such a law could be made retroactive to apply to Lay. "Even this Congress is not going to be party to an attempt to criminalize Ken Lay," says attorney David Berg, author of The Trial Lawyer, What it Takes to Win "when the law has declared him innocent."