Pardon Me, Mr. Lay?

Di francis column june 27 National Post


Speculation is that President George Bush will grant a Presidential Pardon in 2008 to former Enron Chair, Kenneth Lay.

"It's certainly a consideration and I'm sure he [Lay] has attorneys working on that," said high profile Houston lawyer Michael J. Wynne in a telephone interview this week.

He's a partner with Houston's Yetter & Warden, LLP, a former prosecutor and white collar crime specialist who sat through the lengthy Enron proceedings.

"Pardons are granted at the end of the Presidential term and Mr. Lay and the President's families are friends," he said.

Several blogs in Washington and Texas have spread the pardon information and the White House has been strangely silent.
"Mr. Lay hasn't been sentenced but there's a good chance that by that time [end of Bush term in 2008] Mr. Lay will have served a couple of years, be an old and broken man and have developed health complications," he said. "And that invites speculation the President may consider a pardon."

Mr. Lay and Skilling were convicted of multiple counts of fraud in relation to the Enron bankruptcy. The Judge in the case, Sim Lake, is a tough conservative who was appointed to the bench by Ronald Reagan and is likely to hand out maximum sentences.

"Personally, I believe a pardon would be an injustice and a shame, considering all the resources spent on this case and considering all the people who were hurt by Mr. Lay's crimes," said Mr. Wynne. "But it's not something to be dismissed because the families were friends and two years from now Enron will be off the radar screen it's on now and the President would have that prerogative."

Pardons are commonplace, even controversial ones.

For instance, former President Bill Clinton besmirched his reputation after he granted pardons to many crooks. He pardoned a convicted friend of his brother-in-law's plus gave another to notorious fugitive Marc Rich, accused of hundreds of millions in tax evasion, but whose former wife was a big financial supporter of President Clinton's.

Another new development is that Mr. Skilling may have burned through tens of millions of dollars set aside for his defense. His own attorney was quoted in Houston newspapers last week as saying he's been owed legal fees for months.

"His lawyer is saying that he's out of money and is asking the courts for permission to get [Skilling] money the government has frozen," said Joel Androphy, a partner with Houston's Berg & Androphy.

"But no one knows what Skilling's financial situation is, or what he is worth, because of all the privacy laws around the world," he added.
Mr. Skilling put up his own millions for bail, but Mr. Lay - a flight risk - had to ask his five children to put their houses and personal assets up as bail to prevent him from fleeing.

The consequences of their convictions will be pretty dire, said Mr. Androphy. He attended much of the trial and believes that the sentences will be lengthy and served in the "Big House".

"The traditional view of this is that they will get 25 and 30 years," he said in an interview. "They won't be in a maximum security prison, but if you get a large number of years, the chance of serving in a minimum security prison are reduced."
Messrs. Lay and Skilling are expected to appeal, and Mr. Skilling last week filed a precursor to that asking that the convictions be thrown out for insufficient evidence.

Mr. Androphy feels the two have little to hope for, either in terms of an appeal or leniency.

"The only hope? If the Democrats win the Presidency in 2008, then everybody on the courts of appeal [in 50 states] resign and the Democratic President appoints all new appellate judges," he said. "This would change the complexion of the court, which is very conservative, but it won't happen."

Mr. Androphy also said an appeal will be difficult because the Enron trial was fair with good representation on both sides.
"I attended a fair amount of the trial and the government satisfied all of the elements. There was plenty of evidence," he said.
The appeals may attack the venue, as being unfair to the accused because it where so many Texans lost their livelihoods and savings.

"It's unlikely an appeal court would entertain reversing the judge who ruled on the venue," said. Mr. Androphy "Besides, both sides expressed satisfaction with the ultimate jury pool when they were chosen."