Laying Down the Law

The news today that a judge revoked Lay’s Enron conviction depresses me. But probably not for the reasons you would expect.

Both the LA Times and the Washington Post headline the story. The Post’s coverage begins

A federal judge in Houston yesterday wiped away the fraud and conspiracy conviction of Kenneth L. Lay, the Enron Corp. founder who died of heart disease in July, bowing to decades of legal precedent but frustrating government attempts to seize nearly $44 million from his family.

The ruling worried employees and investors who lost billions of dollars when the Houston energy-trading company filed for bankruptcy protection in December 2001. It also came more than a week after Congress recessed for the November elections without acting on a last-ditch Justice Department proposal that would have changed the law to allow prosecutors to seize millions of dollars in investments and other assets that Lay controlled.

With the judge’s order, Lay’s conviction on 10 criminal charges will be erased from the record. “The indictment against Kenneth L. Lay is dismissed,” U.S. District Judge Simeon T. Lake III wrote in a spare, 13-page order.

While I do feel for those who lost pensions in this case, I’m really not too disappointed that Judge Lake followed standard case law here. That’s because it looks like he followed standard case law and really didn’t have any choice. In fact, it looks like the prosecutors knew what was coming and didn’t even try to argue the case. According to the LA Times

Prosecutors offered no counter legal argument in the case, but asked Lake to hold off on a ruling until next week so Congress could consider legislation from the Justice Department that changes current federal law regarding the abatement of criminal convictions. Congress recessed for the elections without considering the legislation.

The fact that they asked the judge to wait for a week for new legislation is fairly immaterial because a new law probably wouldn’t have been retroactive in the first place. I am very sure Judge Lake would have been overjoyed to have been able to issue a different ruling. He just didn’t have any wiggle room.

But if I don’t find the fact that Lay got off absolutely stomach turning, what is my problem? I posted on Monday about the current legislation being considered in several western states to impose restrictions on so called ‘activist judges.’ Even though this case has nothing to do with activism nor is the legal precedent even roughly fair in many cases, this will play into the hands of the conservative forces trying to pass these laws weakening the judicial branch. If the only advertisement supporters of these measures run for the next three weeks pushes the Lay case, these laws will probably pass by landslides. That has me depressed.

Justice isn’t always about what’s right, but rather what’s just.

While in some cases the death penalty might be just, it isn’t right because it is misused, unfairly applied and often imposed in borderline cases. In the US, the death penalty is not used as a deterrent but as a political tool. It is a conservative sop to the right wing. It is clear that despite statistical evidence, that the death penalty is still being imposed on those defendants with a clear class and racial bias. The death penalty is often used cases where the political benefits to the DA outweighed the facts presented. Thus the death penalty often isn’t fair even though it is law of the land and therefore just. The law must be changed, not the judgements.

Awarding huge awards to plaintiffs in civil suits, while just, really isn’t right. Here I probably move from the left into the right side of the court. I understand awarding huge amounts in cases where the defendant is a huge multinational corporation but that often isn’t the case. Indeed, I often wonder how much of the US GNP goes into trying and insuring against this kind of litigation – both the justified and unjustified cases. The only real beneficiaries of huge lawsuits are the law firms – not the plaintiffs. I would argue the laws need to be rewritten, the case law challenged, but at the moment, the law of the land allows the lawsuits and the results are just even if the total costs are higher than people realize. Again, the law must be changed, not the judgements.

Letting a murder go because police tortured him into a confession, is just even if it doesn’t feel right. (Yeah, I know –torturing people is supposed to be OK now.) This is what legal systems are were supposed to do, protect all people – even the bad guys. Police departments need to follow the laws created and nurtured over the last centuries. This is important in order to keep the innocent from being justly accused and tried. In the current political and social climate, an unjust accusation is almost the same as a conviction – at least for the accused. Unfortunately, here the law has been changed railroaded, one hopes the judgements do not follow.

So is it right that Lay ‘get off?’ No, he should have paid, his memory should be demolished, his family should be forced to give back the money and Lay’s ashes should be scattered in an unmarked Texas feedlot. Is this ruling  just? Yes. There are few Lays and too many borderline cases no one has heard of where this type of justice is appropriate. It is right. I’m just afraid I’m one the few people who feels this way.

This is just another case of a judge laying down the law – right or weong.

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