A Death In Aspen

Ken Lay died early this morning in a hospital in Aspen, apparently of a heart attack. He will not be serving the kind of time intended by the DOJ. The Jury's verdict still stands, of course, but now the ultimate verdict has been rendered.

I wonder how he is being judged today.

One thing I know for sure. The strain of a long trial did not help his heart.

And it may have broken it.

Here's an interesting legal question:

What are the rights of appeal of an individual who dies after conviction but before the appeal is heard?

If anyone knows, let me know. Meanwhile, I will check on it.

Addendum:

Peter Henning of White Collar Lawprof Blog, has the answer:

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.

Update: Link fixed, thanks to jlbussey.