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Senator calls for DOJ to appeal dismissal of Lay conviction

[JURIST] US Sen. Dianne Feinstein (D-CA) [official website] has urged the US Justice Department [letter] to appeal this week's federal court ruling vacating the conviction [opinion, PDF; JURIST report] of former Enron Chairman and CEO Kenneth Lay [JURIST news archive]. Feinstein wrote to US Attorney General Alberto Gonzales Friday, calling the ruling "disconcerting" and warranting "immediate attention." US District Court Judge Sim Lake Tuesday vacated Lay's conviction and dismissed the indictment against him under the doctrine of abatement, which allows federal courts to vacate convictions of criminal defendants that die pending appeal. Lay died suddenly [JURIST report] of a heart attack in July, two months after being convicted [JURIST report] on fraud and conspiracy charges [indictment, PDF] for providing investors with false and misleading financial information from 1999 up until Enron filed bankruptcy in late 2001.

Lake cited US v. Estate of Parsons [opinion, PDF], where the US Court of Appeals for the Fifth Circuit ruled that a defendant's death during a pending appeal nullified the guilty verdict because the defendant could not properly challenge the conviction. In her letter to Gonzales Friday, Feinstein wrote:

The Fifth Circuit holding in Parsons went far beyond traditional notions of abatement. While the common-law doctrine of abatement has historically wiped out "punishments" following a criminal defendant's death, the Supreme Court has never held that it also must wipe out a victim’s right to "compensatory" relief such as restitution. As the six dissenters in Parsons noted, the majority's "'finality rationale' is a completely novel judicial creation which has not been embraced or even suggested by ... other courts." And the Third and Fourth Circuits have expressly refused to abate a restitution order after a criminal defendant's death.
The Justice Department had asked Lake to defer a ruling [JURIST report] in the matter to allow Congress time to consider a bill drafted by DOJ lawyers that would remove the doctrine of abatement from the criminal code, but Lay's lawyers pressed for a speedy decision [JURIST report] on the grounds that Congress adjourned in September with neither introduction nor passage of any such bill. Feinstein said she was
...dismayed to learn that the Justice Department delivered its request for emergency legislation on this issue only to Vice President Cheney and Speaker Hastert, failing to notify all members of the House and Senate Judiciary Committees...

I also plan to introduce legislation when Congress returns from recess to address the issue of abatement after a criminal defendant's death. We should do everything in our power to protect not only the victims of Enron, but also other victims who may be harmed by this unfair principle of law.
With the vacated conviction, the federal government now has no means of seizing property controlled by the Lay estate to compensate victims of the Enron collapse. The Houston Chronicle has more.

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