<< O'Connor at the Ninth | Main | Rutherford and Wilcher Orders >>

Serious Error in Ken Lay Trial?


The AP reports that Ken Lay's conviction was vacated in federal district court today. Overturning of a criminal judgment is per se proof that a serious error occurred at trial. Further, the high percentage of overturnings of convictions of CEOs of very large corporations is proof that the system of trying CEOs is broken. We should all start wringing our hands and call for an immediate moratorium on the trial of mega-CEOs until this broken system is fixed.

The foregoing drivel is strikingly similar to an argument we have heard with some regularity in the death penalty debate. However, the argument was taken seriously in the death penalty context. A judgment may be overturned in a criminal case, even though everyone involved in the trial performed correctly, because of events occurring after the trial. In Lay's case, the defendant died during the appeal, and the federal courts still adhere to the bizarre rule that this results in automatic vacation of the sentence. (Imagine an appellate attorney discussing this rule with his client. "You want a guaranteed reversal?  Yes, I can do that, but there's just one small catch.")

In capital cases as well, a trial conducted in full accord with the rules in effect at the time may be reversed if the rules change down the road. For example, capital sentences have been reversed because: (1) the jury was instructed with the original Texas special issues, considered and upheld as a valid method of sentencing in Jurek v. Texas; (2) the jury was given evidence of the impact of the crime on additional victims in accordance with a statute of the state, erroneously declared unconstitutional in Booth v. Maryland, which was overruled in Payne v. Tennessee; (3) the judge rather than the jury found the circumstances that qualified the case as capital, a procedure expressly approved in Walton v. Arizona; (4) the jury considered mild retardation as a mitigating circumstance rather than a categorical exclusion, a mode of proceeding upheld in Penry v. Lynaugh. I could go on and on, but that's enough.


The anti-death penalty crowd is probably also anti-mega CEO's, so what's a conscientious liberal to do with this dilemma?

I'm not anti-death penalty but I am a moderate liberal. With that said, if someone is truly a conscientious liberal then they want EVERYONE to get a full and fair trial regardless of who it is. Unfortunately, many people in the far left crowd are not conscientious.

There is also the flip side. Prior to 1987, the California Supreme Court reversed 60 out of 64 death judgments. We now know, based on subsequent United States Supreme Court precedent, that a number of those reversals were unnecessary because of the state court's crabbed reading of Eighth Amendment jurisprudence--particularly the incorrect ruling that an intent to kill was required for actual killers in order to be eligible for the death penalty. Yet those reversals, in which prosecutors have been ultimately vindicated, are still counted to inflate California's reversal rate.

The reversal "studies", "innocence" statistics and racial impact "studies" are part of a disturbing modus operandi of the abolitionists. Calling the death penalty racist without examining the effect of geography on the so-called victim disparity, lumping people like Kirk Bloodworth with Jeremy Sheets and claiming well over 100 innocent people have been sentenced to death and pointing to reversal statistics with no examination of the causes of reversals is intellectually dishonest, and in my opinion, immoral.

Abolitionists should NEVER forget that they are taking up the cudgel for killers. That obligates them to fight fair and reject certain tactics as out of bounds. Calling the system "racist" impugns the integrity of thousands of prosecutors, judges, policemen and jurors. It is simply wrong to do this on behalf of these killers.

Unfortunately, it seems many abolitionists believe that intellectual dishonesty is ok because of the greater cause it serves, namely abolition. What's even more distressing is that people who should know better swallow a lot of this nonsense. US Supreme Court Justices actually criticized the Florida legislature and berated a state attorney general over the Lancet study, which appears to be seriously flawed and the product of bias.

Federalist raises an interesting point. Why not take up the cause of crippled children? Why not advocate for battered women? Why not champion for the dignity of the elderly? Why, instead of a zillion better alternatives, zealously advocate for the worst of the worst, and do so with no integrity, lying, cheating and scamming all the way? Those who do so have serious psychological flaws, and are attempting to punish the just to mask their own self-loathing.

Leave a comment

Monthly Archives