When Ken Lay died, he had already been found guilty of the charges against him for his role in the Enron debacle… but his lawyers had not yet started the appeals process.
This brought up an interesting legal precedent: because Lay’s full range of legal options (via the appellate system) hadn’t been exhausted, his conviction would be thrown out:
By law, Lay had a constitutional right to participate in his criminal appeal. And since he’s no longer alive to help his attorneys prepare, the case will be “extinguished” — as if it never happened, explains Houston attorney Joel Androphy, author of the textbook White Collar Crime. “It’s as if he was never charged and convicted,” says Androphy. “This is the law. There may have been a moral victory for the government, but there’s no longer a legal victory.”
As if it never happened? Maybe not:
HOUSTON (Reuters) – Prosecutors asked a federal judge on Wednesday to hold off wiping late Enron founder Ken Lay’s fraud and conspiracy convictions from the books until Congress can consider a U.S. Justice Department proposal to take such power away from the courts.
According to a motion filed with U.S. Judge Sim Lake, the Justice Department on Tuesday asked Congress to pass a law that would prevent judges from vacating convictions, which could happen in Lay’s case because he died after being found guilty but before he could appeal his convictions.
On the face of this, I agree. If someone was found guilty, but then dies, it seems bizarre to pretend the prior conviction never happened… and in the case of Enron, there are enormous financial stakes, and many victims.
“The doctrine as applied in many federal courts directly and unnecessarily harms crime victims,” chief Enron prosecutor Sean Berkowitz and Assistant U.S. Attorney John Hueston wrote in the motion.
“It erases the hard-won verdicts against those who have wronged them, verdicts that might aid crime victims in civil litigation,” Berkowitz and Hueston wrote.
But to pass legislation to apply retroactively? Can they even do that?
Yes, I believe they can pass legislation that would apply retroactively. It is just the wording for many laws passed is written so that it would not apply retroactively because of the potential mess it may cause. Think of the Americans with Disabilities Act. It applied to any new structures built after the act was passed so that the cost of making new ramps and elevators could be spread out, since it was not a funded mandate really.
But for this type of legislation, it may be applying to so few cases the way it is worded that if it is applied retroactively it isn’t going to be a mess that disturbs much of the public or creates a financial spending panic. So yes, I think they can word laws to apply however they want, just that many times applying retroactively would cause some event that keeps Congress from bragging about what they passed.
I think you are talking about ex-post-facto legislation, which attempts to reach back and make an event a crime when it wasn’t one as it was being committed. I don’t think such things are allowed (Loren Steffy and others have referred to it as “changing the rules”), though when Clinton extended the firearms possession ban to anyone who had ever been convicted of a crime of “domestic violence”, he specifically included language to indicate that it applied to crimes that had been committed in the past, thus causing a lot of military/police types to have to ‘retire’ early. I think *he* was referring to the “grandfather clause”, and maybe that is how the DoJ hopes that Congress will view the Lay thing.
Personally, I hope DoJ gets slapped down, and hard. It is not the job of the Executive Branch to introduce legislation – and to invite prosecutors to do so would be a truly horrid thing.
~EdT.
There seems to be a huge double-standard here. If you are convicted, you’re guilty — until you win an appeal. This is how I always understood it. If you are charged with a violent crime and get out on bail (because you’re still innocent), then once you’re convicted they take you off to jail. Sure you can appeal, but you have to stay in jail until you win the appeal. There is no constiutional right to be not-guilty until all appeals have run out, so I don’t see why they treat it like that for white collar crime.