cheating the hangman

[geezerdonk]

Ken Lay dies in Colorado.

[Limey]

Perhaps it's more than just the hangman who gets cheated.  From the Chronicle blog on this topic:

Under the Fifth Circuit's law of abatement of a criminal conviction when a defendant dies before appellate review of the conviction, "It is well established in this circuit that the death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceeding." United States v. Asset, 990 F.2d 208 (5th Cir. 1993). In a recent Fifth Circuit decision, United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004), the court explained that "the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." In Parsons, the court vacated a forfeiture order, which means that the government's forfeiture claim against Lay for $43.5 million (see earlier post here) will be dismissed. The Fifth Circuit explained the rationale for the rule: "The finality principle reasons that the state should not label one as guilty until he has exhausted his opportunity to appeal. The punishment principle asserts that the state should not punish a dead person or his estate." An interesting question is whether one can still describe Lay as having been convicted of a crime, at least in a technical sense, because the law no longer recognizes there having been any criminal case initiated against him.

[The Spleen]

...otherwise known as the "Hermann Goering defense."

I'm guessing the family won't be consenting to an autopsy...

[Bench]

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Perhaps it's more than just the hangman who gets cheated.  From the Chronicle blog on this topic:

Under the Fifth Circuit's law of abatement of a criminal conviction when a defendant dies before appellate review of the conviction, "It is well established in this circuit that the death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceeding." United States v. Asset, 990 F.2d 208 (5th Cir. 1993). In a recent Fifth Circuit decision, United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004), the court explained that "the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted." In Parsons, the court vacated a forfeiture order, which means that the government's forfeiture claim against Lay for $43.5 million (see earlier post here) will be dismissed. The Fifth Circuit explained the rationale for the rule: "The finality principle reasons that the state should not label one as guilty until he has exhausted his opportunity to appeal. The punishment principle asserts that the state should not punish a dead person or his estate." An interesting question is whether one can still describe Lay as having been convicted of a crime, at least in a technical sense, because the law no longer recognizes there having been any criminal case initiated against him.

Wow, I had no idea, but that makes sense under the Constitution. I bet the court would invent some sort of loophole in the event of suicide or dying with the intent to deprive the government from collecting forfeitures (if it's shown that Linda killed him or offed himself, which is purely baseless hypothetical speculation on my behalf).

[Juli]

The 5th circuit makes an exception for victim compensation.  United States v. Mmahat , 106 F.3d 89, 93(5 th Cir. 1997) and United States v. Asset , 990 F.2d 208, 211, 213-214 (5 th Cir. 1993).  Restitution and/or victim compensation survives death because it is not a punishment made moot by the death.  The 5th circuit abates the punishment aspect because they don't see the purpose of continuing an appeal over the punishment of someone who can't serve the punishment out anyway.

[Limey]

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The 5th circuit makes an exception for victim compensation.  United States v. Mmahat , 106 F.3d 89, 93(5 th Cir. 1997) and United States v. Asset , 990 F.2d 208, 211, 213-214 (5 th Cir. 1993).  Restitution and/or victim compensation survives death because it is not a punishment made moot by the death.  The 5th circuit abates the punishment aspect because they don't see the purpose of continuing an appeal over the punishment of someone who can't serve the punishment out anyway.

Even if the punishment is in the form of fines that could still be paid out of the individual's estate?

[Juli]

That's the end result, really.  The government will look to Lay's estate for the compensation they think should come out of it.  Their investigation and court processes will continue until they either can't link any more money to criminal behavior or a court (probate probably) has stepped in to say to draw a line in the sand for the prosecutors.  It will all get more complicated, but not really unusual.  Search for federal cases named the US v. Assets or US v. some dollar amount.

[Limey]

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That's the end result, really.  The government will look to Lay's estate for the compensation they think should come out of it.  Their investigation and court processes will continue until they either can't link any more money to criminal behavior or a court (probate probably) has stepped in to say to draw a line in the sand for the prosecutors.  It will all get more complicated, but not really unusual.  Search for federal cases named the US v. Assets or US v. some dollar amount.

Thanks.  Any idea what happens to civil suits?  Can they continue against the estate?

[Juli]

I'm not sure.  Sorry!

[Limey]

Here's the Chronicle's story on the subject.

* Heart attack story comes from Lay's pastor
* Autopsy due later this week.
* Death is "under investigation" by local cops
* May scupper gov't forfeiture action
* Lay's Lawyers keeping mum

[pravata]

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Quote:
That's the end result, really.  The government will look to Lay's estate for the compensation they think should come out of it.  Their investigation and court processes will continue until they either can't link any more money to criminal behavior or a court (probate probably) has stepped in to say to draw a line in the sand for the prosecutors.  It will all get more complicated, but not really unusual.  Search for federal cases named the US v. Assets or US v. some dollar amount.

Thanks.  Any idea what happens to civil suits?  Can they continue against the estate?

This article The Link suggests yes, but "...Prosecutors are now going to have to show that individual assets they want to seize were bought with funds illegally received from Enron..."

[Limey]

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This article The Link suggests yes, but "...Prosecutors are now going to have to show that individual assets they want to seize were bought with funds illegally received from Enron..."

Also, I suspect that civil suits will have to go back to "square one", as the criminal conviction that would prove their case for them no longer exists.

[No? in Austin]

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Also, I suspect that civil suits will have to go back to "square one", as the criminal conviction that would prove their case for them no longer exists.

I dunno, OJ's criminal case didn't affect his civil suit loss.

[Limey]

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I dunno, OJ's criminal case didn't affect his civil suit loss.

Different circumstances.  The civil case against OJ was essentially a retrial with different rules of evidence that gave the plantiffs much more ammunition than was allowed at the criminal trial.

Here, the civil case was essentailly gift-wrapped by the criminal conviction that now may not exist.  Specfically: Lay was found guilty, but the conviction doesn't get recorded until he is sentenced.  He won't now get sentenced so the conviction will never be recorded.  Poof!  The civil suits' smoking gun disappears in...ummm...a puff of smoke.

[Juli]

The evidence and testimony still remain.  So, it's more like a retrial than starting from scratch.  And, the civil burden of proof is preponderance of a doubt (more likely than not) instead of beyond a reasonable doubt.   More testimony and evidence can come in because the elements are different.  It is a lot like the OJ case.  The civil attorneys won't be able to allude to the conviction or that a jury found that Lay was guilty.  Not a terrible thing to get around, though.

[MusicMan]

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I dunno, OJ's criminal case didn't affect his civil suit loss.

Different circumstances.  The civil case against OJ was essentially a retrial with different rules of evidence that gave the plantiffs much more ammunition than was allowed at the criminal trial.

The rules of evidence were irrelevant.  A competent prosecution, a competent judge, a jury with even a baseline understanding of DNA... put any one of the three in there, and OJ is rotting in jail for the rest of his days.

[Limey]

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The rules of evidence were irrelevant.  A competent prosecution, a competent judge, a jury with even a baseline understanding of DNA... put any one of the three in there, and OJ is rotting in jail for the rest of his days.

But then who would find the "real killers"?  I hear OJs search is extensive and unrelenting.  Apparently he looks for them in 18 possible hiding places, every single day.

[Limey]

The link

[strosrays]

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But then who would find the "real killers"?  I hear OJs search is extensive and unrelenting.  Apparently he looks for them in 18 possible hiding places, every single day.

The place to be at a time like this, of course, is on Fox News.  Specifically The Factor.  No carrion crow or self-respecting vulture can tear into a piece of rotting meat any better than Bill O'Reilly can.  Last night he said Lay's contention that he was unaware his company was operating corruptly meant Lay was either a lying criminal, or a complete idiot.

O'Reilly's guest, some "insider" who has written a book on Enron, said she leaned toward idiot.  She said Lay was really a PR guy, and as an executive she likened him to Chauncy Gardner.  Wow.

I don't know how to fit it in with everything else, but Ken Lay as a bumbling Peter Sellers character is a mental image I won't be able to rid myself of anytime soon.  And somehwere in whatever circle of hell he is presently habitating, Jerzy Kozinski is wondering how he got dragged into all this.

[Limey]

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O'Reilly's guest, some "insider" who has written a book on Enron, said she leaned toward idiot.  She said Lay was really a PR guy, and as an executive she likened him to Chauncy Gardner.  Wow.

Ignoring the crassness of this opinion, perhaps Remington Steele would've been a better analogy than Chancy.  I suspect, however, that Gordon Geko was probably closer to the truth.