A Death In Aspen

Wednesday, July 05, 2006
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.


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.


David Thomson said...

Ken Lay saw no evil, spoke no evil, and heard no evil. This was basically his defense argument:

“Enron was paying me millions of dollars annually. The reality is that I’m so dimwitted that I should have been cleaning toilets at $6.00 per hour.”

I accurately predicted the easy conviction of Chief Financial Officer, Andy Fastow. The “I’m really a moron” excuse won’t fly when you are the one chiefly dealing with the corporation’s money. Lay could, at least, weakly argue that he was deceived by Fastow.

terrye said...

In the end, what good did all that money do him?

Eric Blair said...

I think he faked his death.

I know it sounds dumb, but he had/has enough money to do it.

vnjagvet said...


His last conscious thoughts were while experiencing some of the most beautiful scenery on the planet.

He probably could not have done that without his wealth.

Other than that, not much that I can think of.

vnjagvet said...


I presume you are joking. Coroners are pretty hard to fool. Even in Summit County, Colorado.

Nevertheless, if he were successful, it would be one of America's greatest hoaxes.

David Thomson said...

“In the end, what good did all that money do him?”

There’s a point where additional wealth does little to enhance one’s life. I am reminded of basketball player Gary Payton reportedly forgetting whether he owned three or four Bentley automobiles. It is my understanding that each one costs around $250,000 each! The top Enron guys already had it made. Their criminal activity, unwitting or intentional, merely allowed them to buy extraneous items of little actual value to themselves.

terrye said...

Well maybe but believe it or not it is possible to see beautiful things without being rich.

Rick Ballard said...


Did they mention if he was clutching his last bill for legal services in his hand?

jlbussey said...

I think his estate can still be gone after for the civil cases even if the crimial case is expunged.

(FYI: Your link to the lawprof blog has a double http in it...)

Eric Blair said...

vnjagvet: Yes, I was joking. But it was one of the the first things that crossed my mind when I heard the report.

Never underestimate the power of money.

Eric Blair said...


I'm not the only one.