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Lay's death could set Skilling free
The Globe and Mail ^ | 07/07/06 | BARRIE MCKENNA

Posted on 07/07/2006 5:13:03 PM PDT by Sunshine55

Lawyers likely to argue that entire case has effectively been voided

BARRIE MCKENNA

WASHINGTON -- Kenneth Lay's sudden death could prove to be an unexpected legal bequest to Jeffrey Skilling, his co-defendant in the landmark Enron Corp. fraud case.

Mr. Skilling's legal team will almost certainly invoke Mr. Lay's demise to try to reverse his own fraud and conspiracy conviction or demand a retrial, legal experts said yesterday.

That's because Mr. Lay's death Wednesday of an apparent heart attack effectively voids the entire case against the Enron founder, including the guilty verdict. Mr. Skilling, the former Enron chief executive officer who is appealing his own conviction, could now argue that much of the evidence against him stems from a case that no longer exists, argued lawyer Jacob Frenkel, a former federal prosecutor and white collar crime specialist.

"This is the first time this has happened in such a high profile case," Mr. Frenkel said. "Everybody is scrambling to see what the law says on this."

How it all plays out could set a legal precedent, he added.

(Excerpt) Read more at theglobeandmail.com ...


TOPICS: News/Current Events
KEYWORDS: enron; enronlist; kenlay; kennethlay; lay; skilling; unfreakinbelievable

1 posted on 07/07/2006 5:13:06 PM PDT by Sunshine55
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To: Sunshine55

It will not void the conviction, much as his lawyers would like to argue.

Lay was guilty, Skilling was guilty. There was enough in the financial transactions to convict, but that isn't as easy to demonstrate to non-finance types. Been there personally with another bunch of guilty folks.

Then again, most AUSA's aren't the best and brightest.


2 posted on 07/07/2006 5:18:32 PM PDT by mgstarr
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To: Sunshine55
This is ridiculous you are judged guilty but die before being sentenced you are now not guilty.

You get judged guilty and are sentenced and the prosecutor will use every trick in the book to throw out legitimate evidence of a wrongful conviction.

3 posted on 07/07/2006 5:18:49 PM PDT by rocksblues (Liberals will stop at nothing.)
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To: Sunshine55
Mr. Lay's death Wednesday of an apparent heart attack effectively voids the entire case against the Enron founder

I have no idea why this would be so.

4 posted on 07/07/2006 5:20:12 PM PDT by Izzy Dunne (Hello, I'm a TAGLINE virus. Please help me spread by copying me into YOUR tag line.)
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To: Sunshine55

This is a garbage opinion worthy of twisted liberal lawyer logic. Makes no sense. Each was convicted.


5 posted on 07/07/2006 5:20:59 PM PDT by plain talk
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To: Sunshine55
when a defendant dies before he has exhausted all his appeals "everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted."

Legal mumbo-jumbo. This sort of thing, IMO, actually moves us farther from a nation under the "rule of law" and closer to a corrupt nation in the clutches of high prices lawyers and like minded judges.

6 posted on 07/07/2006 5:21:03 PM PDT by JimSEA (America cannot have an exit strategy from the world.)
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To: Izzy Dunne
I have no idea why this would be so.

The only reason is because the conviction was on appeal and a lot of the evidence was given by a (now) dead guy.

7 posted on 07/07/2006 5:21:59 PM PDT by mgstarr
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To: Izzy Dunne

If anything, this puts Skilling in hotter water. The public wants someone to pay for the Enron debacle, and he's the last big dog standing.

Ken Lay's death is not a get of jail free card. It's more like go there until you're dead card.


8 posted on 07/07/2006 5:23:46 PM PDT by Dog Gone
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To: Sunshine55

Set him Free!

But first gather all of the "Screwed" Stock Holders, Employees and Retired... and set him loose in the middle of that mass, if he escapes with his life, he can keep running forever, if not, well (in the words of the Great One), Clinton Happens.

TT


9 posted on 07/07/2006 5:25:37 PM PDT by TexasTransplant (NEMO ME IMPUNE LACESSET)
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To: mgstarr
The only reason is because the conviction was on appeal and a lot of the evidence was given by a (now) dead guy.

But I thought appeals were not to decide evidence, but to decide about possible improper procedures at the first trial. IOW, you could decide on the admissibility of certain evidence, but not change the evidence itself.

10 posted on 07/07/2006 5:27:54 PM PDT by Izzy Dunne (Hello, I'm a TAGLINE virus. Please help me spread by copying me into YOUR tag line.)
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To: Izzy Dunne
I have no idea why this would be so.


The federal case may go but I believe the civil cases that people bring will still be adjudicated. I think I read that in an article discussing the potential dismissal of the criminal case.
11 posted on 07/07/2006 5:28:29 PM PDT by deport
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To: Sunshine55

Too bad Fastow got off so easily. His wife should be rotting in jail too.


12 posted on 07/07/2006 5:28:40 PM PDT by OldFriend (I Pledge Allegiance to the Flag.....and My Heart to the Soldier Who Protects It.)
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To: rocksblues

He died without a chance to appeal. That is the fly in the ointment .


13 posted on 07/07/2006 5:29:16 PM PDT by Renegade
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To: Izzy Dunne

The law of the land is that if a defendent is deceased prior to exhausting his legal remedies.....appeal.....then his conviction is expunged from the record.


14 posted on 07/07/2006 5:29:49 PM PDT by OldFriend (I Pledge Allegiance to the Flag.....and My Heart to the Soldier Who Protects It.)
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To: deport

The criminal case against Lay ends with it undecided from a legal standpoint. Nobody is going to sentence his body to a jail cell, nor are they going to decide whether his appeals had any merit.

It just stops. His conviction isn't reversed or halted. That happened.

The only legal effect is that it won't be possible to use the criminal conviction in any civil proceeding to seize his remaining assets. But that's not a huge obstacle. It's no different than if he had pleaded no contest at the criminal trial.


15 posted on 07/07/2006 5:34:54 PM PDT by Dog Gone
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To: Sunshine55

I am not a lawyer (but I did stay a at Holiday Inn Express – just kidding).

Seriously – where Lay and Skilling tried together or separately? If separately then I would think Skilling has less chance of getting his conviction overturned since his trial stood on it’s own merits unless his conviction was based soley on Lay’s testimony.

Even if they were tried together, I would think Skilling at best could have grounds for a retrial but people with a better understanding of the law will I’m sure correct me and shed more light.

In any case I hope they both get what they deserve, either in this live or in another…..


16 posted on 07/07/2006 5:36:46 PM PDT by Caramelgal (There can be no happiness if the things we believe in are different from the things we do.)
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To: Renegade
"He died without a chance to appeal. That is the fly in the ointment."

This is ridiculous! Lay was tried and convicted. If he has an appeal in process the appeal is terminated. Period. As for Skilling, if he has an appeal it should not be affected unless the appeals court overturns the verdict and a retrial is ordered. The appeals court only looks at the trial as far as how it was handled, etc. It does NOT retry anything.

The Globe & Mail, I believe, is a UK paper. What the heck do they know?

17 posted on 07/07/2006 5:38:24 PM PDT by bcsco ("He who is wedded to the spirit of the age is soon a widower" Anonymous)
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To: Izzy Dunne
...it is so though....and has been for quite some time.. if you die before you are able to exhaust your appeals...then it is as if you were never convicted....which sucks..on the other hand....all these jack ass lawyers for the defense saying is as if the trial never took place.....lol..well great....does that mean we don't have to pay the legal fees?....haha....don't expect for a minute the lawyers won't receive their fees....but how could they...the trial never existed.......LOL......
18 posted on 07/07/2006 5:45:11 PM PDT by NorCalRepub
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To: bcsco
...well in this case...they are right.....I"ve heard it on all shows.....conservatives and libs alike....Lay gets a free pass to hell....no conviction.....too bad, but that is the way it always has been.....but I still hope they go after everything he owns if at all possible......
19 posted on 07/07/2006 5:46:56 PM PDT by NorCalRepub
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To: bcsco

Evidently there was a similar case in 1971 that went to the Supreme Court and they found in favor of the deceased .


20 posted on 07/07/2006 5:47:37 PM PDT by Renegade
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To: Renegade
"Evidently there was a similar case in 1971 that went to the Supreme Court and they found in favor of the deceased."

Well, that was the Supreme Court back in 1971. I think the makeup is a little different now. I wonder what the decision would be if it were to be reaccepted.

21 posted on 07/07/2006 5:52:30 PM PDT by bcsco ("He who is wedded to the spirit of the age is soon a widower" Anonymous)
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To: OldFriend

I agree. She was the one who orchestrated much of this mess behind the scenes.

Andy Fastow was just the mouthpiece who smoozed.


22 posted on 07/07/2006 5:53:55 PM PDT by Proud_USA_Republican (We're going to take things away from you on behalf of the common good. - Hillary Clinton)
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To: Dog Gone

The conviction of Lay is expunged from the record.


23 posted on 07/07/2006 5:59:30 PM PDT by OldFriend (I Pledge Allegiance to the Flag.....and My Heart to the Soldier Who Protects It.)
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To: Izzy Dunne

That part is correct - based on a prior 5th Circuit court case, a defendant who dies with his initial conviction on appeal is presumed to have won the appeal and thus all charges are dismissed.

Thus with the Lay case the Feds will be unable to seize any of his remaining assets - likewise 50% of those now go to his wife and are further protected from judgement.


24 posted on 07/07/2006 6:08:56 PM PDT by VRWCTexan (History has a long memory - but still repeats itself)
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To: bcsco

Set precedent !


25 posted on 07/07/2006 6:13:31 PM PDT by Renegade
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To: Sunshine55

This looks like nothing more than an empty ploy. If anything, Jeffrey Skilling was more guilty than Kenneth Lay was.


26 posted on 07/07/2006 6:15:48 PM PDT by Clintonfatigued (Illegal aliens commit crimes that Americans won't commit)
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To: Sunshine55

What a load of CRAP. Applying the same logic, if a murderer is found guilty and the witness against him dies after the fact, does that mean the conviction should be overturned???


27 posted on 07/07/2006 6:19:15 PM PDT by ExpatCanuck
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To: Clintonfatigued
I always remember that line from the movie "Enron: The Smartest Guys in the Room", supposedly one of Skilling's professors in college asks him if he is smart and Skilling's response is: "I'm F***ing Smart". It really is a glimpse into his whole mindset. We shall see.
28 posted on 07/07/2006 6:24:44 PM PDT by khnyny (Never in the field of human conflict was so much owed by so many to so few.- Winston Churchill)
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To: Sunshine55
That's because Mr. Lay's death Wednesday of an apparent heart attack effectively voids the entire case against the Enron founder, including the guilty verdict...

That Karl Rove is so brilliant.... twisting justice on it's ear before the Dems can make hay of Lay's sentencing... /sarc

29 posted on 07/07/2006 6:25:41 PM PDT by theDentist (Qwerty ergo typo : I type, therefore I misspelll.)
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To: mgstarr

The conviction wasn't on appeal yet - neither Lay's nor Skilling's. Sentenving was to take place on September 11th (not a random choice) but both attorneys went to court and after the hearing on June 18th, which I had missed knowing about until Lay died, it was delayed to October 23rd.

Apparently, after so many legal pundits chiming in on this the past couple of days, appeals can't start until the sentence is pronounced.

Skilling, his wife and attorney are going to Aspen for the weekend, for Lay's memorial service, then coming back to Houston for the memorial service here next week.

Of course, Skilling has been saying in court he needs his assets unfrozen so he can pay child support.


30 posted on 07/07/2006 6:34:11 PM PDT by Rte66
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To: bcsco

Although I practice law, I don't do any criminal defense work. Nevertheless, it makes sense to me that the criminal case goes away when the defendant dies. What can be done to the guy now? What is the purpose of a criminal prosecution? I thought it was to determine guilt and then administer an appropriate punishment so as to deter future criminal actions. I think Lay can be considered deterred. And you can't punish him, so what is the point? His estate can still be sued. THAT I do know something about.


31 posted on 07/07/2006 6:35:22 PM PDT by NCLaw441
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To: VRWCTexan

Not from a civil judgment, just from criminal forfeiture. There is still more to come.


32 posted on 07/07/2006 6:36:45 PM PDT by Rte66
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To: Caramelgal

Most of the first legal voices on this said it won't affect Skilling's October 23 sentencing date on his conviction at all - even though they were tried together.

Now that it's two days later, the defense attorneys have cooked something up, so the media outlets are giving them some play.


33 posted on 07/07/2006 6:44:32 PM PDT by Rte66
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To: NCLaw441

The problem is that there was a matter of a criminal forfeiture associated with the conviction, in the amount of $43+ million. More than a few people are unhappy about that just "going away."

Lay had lied to the court about his assets, saying he was $-250,000 in the hole. However, there was at least $6+ million in cash and other equivalents totalling $9 million just lying around. There are other assets not quite as liquid - some RE and accounts unknown offshore.

His wife is taken care of with insurance and annuities around $30 million, so no one is taking any food out of her mouth, although she thinks she's broke.

Then there is the large debt of $20+ million owed to this round of attorneys, but I believe that was accounted for before the reported brokerage account.


34 posted on 07/07/2006 6:51:46 PM PDT by Rte66
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To: NCLaw441

As I understand it Lay had assets of approx 9 million left and about the same amount in debt. His assets were close to 400 million when all this started going bad. He lost most of it as the stock tumbled along with everyone else. There is a 10 million life insurance policy which his wife will recieve that can't be considered part of the estate or ill gotten gains. I heard all this from a c-span program that also said that Lay's death would neither hurt nor help Skilling.


35 posted on 07/07/2006 6:57:58 PM PDT by Liberty Valance (Keep a simple manner for a happy life)
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To: Rte66

[His wife is taken care of with insurance and annuities around $30 million, so no one is taking any food out of her mouth, although she thinks she's broke.]

Mrs. Lay knows she's not broke. I remember her on TV (Diane Sawyer I think) shortly after the Enron scandal started, claiming that they had "lost everything" and had no money. It was disgusting.


36 posted on 07/07/2006 6:59:33 PM PDT by khnyny (Never in the field of human conflict was so much owed by so many to so few.- Winston Churchill)
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To: Rte66

the wife will make herself "judgement proof" - like OJ Simpson did.


37 posted on 07/07/2006 7:01:29 PM PDT by oceanview
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To: Sunshine55

A high-ranking republican said yesterday that Lay was a good guy.


38 posted on 07/07/2006 7:11:30 PM PDT by Ben Chad
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To: khnyny

The interviewer was named Lisa *something*. I remember it well. Boo hoo. I don't know a soul, even many who still defend the Lays, who wasn't turned off, one way or another by her performance. And that was with counsel of a seasoned PR professional having coached her!

Then she opened a little boutique shop selling off all their used furniture and continued to act even more pitiful. The River Oaks ladies in the neighborhood helped her out. Then, one day, it was just *poof* gone.


39 posted on 07/07/2006 7:11:53 PM PDT by Rte66
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To: oceanview

That part I mentioned already is. The rest will be up for grabs, whatever "rest" there is to find. Depending on how much she wants to spend on attorneys, I imagine she will fight tooth and nail for every last penny - unless it costs too much.

Then again, some shyster may talk her into a wrongful death suit against the Feds or the SEC. Ha! I actually saw two reporters Wednesday stick a mike in front of a sweet little 20something girl who had been a juror in the trial and ask her if she felt responsible for Lay's death!


40 posted on 07/07/2006 7:16:59 PM PDT by Rte66
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To: Renegade

My initial response was that it couldn't be, however upon further research I discovered the law of abatement which holds that if person is convicted of a crime, but dies before the conviction is affirmed, its as if the indictment never took place. Something is wrong with this but it is settled law in the 5th Circuit. This could lead to some interesting possibilities. What if Kenny Boy knew this and took something to induce the heart attack. Or how bout his heirs knew about it and slipped him something to induce the heart attack. Not saying this took place, but it greatly increases the barriers to civil forfeitures against his heirs. And best of all it seems to really crimp the case against Skilling.


41 posted on 07/07/2006 7:34:53 PM PDT by appeal2
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To: NCLaw441
"it makes sense to me that the criminal case goes away when the defendant dies. What can be done to the guy now?"

That's essentially what I said. If his conviction is under appeal the appeal dies. The conviction stands, although is now moot.

The balance of my comment was directed at Skilling and whatever affect his death may have on a Skilling appeal. To me, it would seem to have no affect because an appeals court will look at the 'propriety' of the trial, not the evidence. Only should an appeals court throw out Skilling's verdict could Lay's death possibly be a factor. That's my humble opinion and I'm no attorney.

42 posted on 07/08/2006 4:09:01 AM PDT by bcsco ("He who is wedded to the spirit of the age is soon a widower" Anonymous)
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To: Rte66

True - however with the "criminal" charges dismissed, the Feds would first have to "re-prove" Lay's "guilt" on the civil side before any funds could be seized.

And now with 50% of what-ever is actually still there being passed to Lay's wife I'm not too sure a very much is left?


43 posted on 07/08/2006 7:16:58 AM PDT by VRWCTexan (History has a long memory - but still repeats itself)
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To: Rte66

True - however with the "criminal" charges dismissed, the Feds would first have to "re-prove" Lay's "guilt" on the civil side before any funds could be seized.

And now with 50% of what-ever is actually still there being passed to Lay's wife I'm not too sure a very much is left?


44 posted on 07/08/2006 7:17:00 AM PDT by VRWCTexan (History has a long memory - but still repeats itself)
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To: appeal2

We neede the CSI team to investigate . Grissom will find the truth .


45 posted on 07/08/2006 1:11:13 PM PDT by Renegade
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To: VRWCTexan

The rumors of "nothing left" may be premature, but we shall see.

I did hear in the last few days that KL's testimony in the criminal trial can be used in the civil trial - and if that's true, perhaps a lot of the other evidence is usable, too.


46 posted on 07/08/2006 8:07:08 PM PDT by Rte66
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