Maybe they can finish the phony sentences of those they railroaded? Of course, not sure how Weissmann is going to make amends for taking down Andersen. Perhaps we can pierce the veil of his phony legal status as human being?

Christine, I assume that you are only half-serious, if that. I would think we could all recognize the difference between corporate executives who knowingly commit fraud in order to boost their own records and their own compensation and prosecutors who in good faith develop a novel theory of criminal liability that is rejected by an apppellate court in another case.

Just as there are good reasons for insulating even overpaid, underperforming executives from liability for the exercise of reasonable but poor business judgement, there are good reasons for insulating prosecutors from sanction for excess of zeal.

"We" can recognize the difference? On "recognizing" fraud, I thought that was what trials were for. On "recognizing" the "good faith" of prosecutors, judges are suppose to police that, as for example the judges on the Supreme Court did 9-0 with regard to the wrongful conviction of Andersen. And what, pray tell, is the equivalent to the (now all but dead) business judgment rule for prosecutors? They have absolute immunity!

(1) Much as we all enjoy Christine's "down home" posts about how folks in Texas are getting along, the fact remains there are a lot of folks in Texas who damn well know better than to put up with high falutin' excuses for what Enron's executives did to them, or to their neighbors.

(2) Given the choice between granting executives immunity ("yes, I told Wall Street I was a Master of the Universe, but I didn't really mean that now that I'm facing jail time and lots of civil judgments for what I did"), and doing the same for prosecutors, logic instructs the latter are the better choice. All this caterwauling, about how "unfair" the Enron proceedings supposedly are, is positively undignified.

Hi:

I found a very interesting article talking about how Enron's trial was more of a mockery than a just reward.

Granted, Mr. Lay has passed, but the trial really didn't help make anyone's life easier or really repay the debt to society.

You can read it here: http://www.lawsuitsearch.com/news/investments/enron_criminal_trial_over_sy.aspx.

I hope you find it as interesting as I did.

Jason

You know, I never really thought about how gross the phrase "disgorge profits" is. But you're right--regurgitate is indeed a synonym for disgorge. Blech. Can't we just require them to pay back the money? I mean, this is why I became a lawyer and not a doctor....

I would think that, in a society committed to the rule of law, a "novel theory of criminal liability" would never be something we want. Why should anyone go to prison for doing something that wasn't a crime until after you did it? A prosecutor who prosecutes people based on a "novel theory of criminal liability" is by definition acting in bad faith.

Early in my legal career in Texas, I was having drinks with an ADA and a criminal defense attorney who told me that a piece of toast could be indicted by a grand jury in the State of Texas. They both agreed with this premise.

My first year out of school I worked with an attorney whose wife sat on a criminal jury panel where the very distinguished and outraged District Attorney spent two days pounding the table, talking about how bad the defendant was and putting witnesses on the stand to agree with him that the defendant was a really bad guy. When the jury began deliberations, they looked around at each other and asked the question, did we see any evidence that he committed this crime. Apparently, there had been very little evidence presented that the defendant had committed this particular crime, and the jury very quickly acquited him. The judge, furious that the jury would be too stupid to understand that this was a very bad guy who needed to be incarcerated, failed to thank them for their time and effort and told them "that's okay, we'll get him on the other 99 charges pending against him".

We want to believe that Mr. Lay and Mr. Skilling and company were so much MORE greedy and MORE dishonest than other executives in other companies. We want to believe this because if they aren't MORE greedy and MORE dishonest, then Enron-like losses could happen again. Good people could lose their jobs. Good people could lose their retirements. Good people could be fooled into turning over their money to dishonest people that they trust. Got news for you...it happens every day.

The lessons learned from Enron need to be learned by all the participants in this debacle...not just the people who made money, but also the people who lost money, and not just the people who will go to jail, but the people who fought very hard to put them there.
Creative Prosecution is no more defensable than Creative Accounting. Creative Accounting can cost a lot of people a lot of money. Its a great harm, but somewhat limited in scope. Creative Prosecution has no limits on the harm it can cause. Money is the least of it. Freedom and life are part of the worst of it. The other part of the worst of it, and probably the most insidious part, is the loss of dignity and integrity within our legal system itself. I know that last part is an idealistic thought from a fairly pragmatic person...but a girl's gotta dream.

The Enron "convictions" -- other than Fastow and his Enron-cheating gang's -- a railroad job by prosecutors with a goal other than justice, unless responding to the cry of the mob can ever be "justice." As long ago as 1940 United States Attorney General, and later Nuremberg prosecutor and Supreme Court Justice, Robert Jackson said that the most dangerous power of a prosecutor is that:

"[H]e will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to, or in the way of, the prosecutor himself."

Preston, I don't think you're doing justice to that Robert Jackson quote. These Enron folks aren't unpopular because, before committing any alleged crimes, they were "unpopular with the predominant or governing group" or "attached to the wrong political views." Jackson was sounding the alarm against prosecutorial discretion being used against unpopular groups ("Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.”"). You're saying that prosecutors get overzealous in responding to reports of alleged crimes committed by those who were, far from being some desenfranchised minority, quite politically well-connected, locally popular, and able to afford legal representation. Sure, Enron isn't popular now, but that's merely to say that after one is accused of a crime (with sufficient plausibility to yield some convictions and prison terms), one gets less popular -- hardly cause for alarm.