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January 6, 2007

Westar reversals ... a sentencing (and class) story?

The mainstream media and the blogosphere are justifiably buzzing over the Tenth Circuit's reversal yesterday of the federal criminal convictions of former Westar Energy executives David Wittig and Douglas Lake.  How Appealing has the basic coverage here and here, and Houston's Clear Thinkers here and White Collar Crime Prof Blog here and here add astute commentary.

Here are my first reactions, in the form of two provocative questions:

1.  Was the Tenth Circuit's review of these convictions (at least unconsciously) a little more rigorous because the defendants had been sentenced to 18 and 15 years in prison?  I wonder if the appeal might have looked different if Wittig and Lake had been sentenced only to, say, 10 months in prison (like Martha Stewart) and were soon to complete their terms.

2.  Was the Tenth Circuit's review of these convictions (at least unconsciously) a little more rigorous because the defendants were upper-class business executives?   I am not alleging any conscious bias, but it sometimes appears that convictions for suite crimes get more carefuly appellate scrutiny than convictions for street crimes (though perhaps this is a reflection of lawyering realities rather than judicial perspectives).

January 6, 2007 at 12:55 PM | Permalink


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I'm wondering if convictions of executives are more likely to be reversed because they tend to involve less well-tested legal theories? After all, there are a lot more prosecutions of street criminals than of executives. So the legal paths involved get different amounts of work.

Posted by: William Jockusch | Jan 6, 2007 6:10:54 PM

For your provocative question (esp. #2), here's a cynical answer: take a look at the lawyers involved. In the Tenth Circuit, one of the defendants' appeals was argued by former Solictor General Seth Waxman, a seasoned appellate (and Supreme Court) litigator, and the other by a powerhouse team from Weil Goshal. Coincidentally, the Westar decision came down on a day when the Supreme Court granted cert in seven cases. Now, of the seven cases in which cert was granted, six basically fall on the "civil" side of line. The petitioners in those cases were represented by Supreme Court gurus Maureen Mahoney (No. 06-427), Carter Phillips (06-484), Bartow Farr (06-593), David Frederick (06-606), U.S. Solicitor General Paul Clement (06-340/549), and one D.C. outsider (Eric Presnell - 06-341). Before the federal courts of appeals, as before the Supreme Court, who signs the briefs and makes the arguments does matter. And it does make a difference when an army of highly intelligent, motivated, and well paid law firm associates are advancing all possible arguments. I don't mean to disparage the many contributions made every day by public defenders and solo practitioners out there, but sometimes money makes the difference. That might have been the case for Wittig and Lake.

Posted by: LT | Jan 6, 2007 9:13:05 PM

My guess is that the defendants got off because they hired one of the best in the business to do their appeal. There was a defect in the convictions that wasn't obvious or easy to find, and my guess is that Waxman was able to point it out persuasively instead of filing the standard "throw everything at the wall and see what sticks" blue brief.

The judges on the panel are very intelligent, but it is up to the appellant to call the panel's attention to the errors he alleges in his trial.

Posted by: Bill | Jan 8, 2007 9:37:35 AM

The defects in the convictions were reasonably apparent from the beginning. The defense objected at trial on every point, and were continually rebuffed by the judge.

Of course, it doesn't hurt that they were fortunate enough to be able to afford the very best appellate counsel. Is it any news that, all else being equal, better representation yields better results?

Posted by: Marc Shepherd | Jan 8, 2007 9:51:14 AM

I suspect that a significant issue is lack of context for the alleged fraud. A typical fraud case involves communications to a particular individual who has particular expectations that can be inferred from context, in an adversarial setting like a negotiation. There is a clear victimization involved.

Here, the fraud involved a filing with a government agency that allegedly did not measure up to SEC standards. There isn't any strong reason to believe that the benefit to the defendants (use of private airplanes) would have been different if there had been better disclosure (overcompensating executives is only a moral crime, not a legal one). And, it is unlikely that a fuller disclosure would have had a big impact on stock price (after all, the total expenses aren't changed by this failure, just the category of expenses reported -- compensation v. overhead). The real victims, moreover, if any, are people not in the courtroom, sellers who undervalued stock or buyers who overvalued stock, as a result, not someone on the witness stand and in the record, with whom any observer can sympathize.

Posted by: ohwilleke | Jan 8, 2007 4:06:49 PM

Two men convicted of killing two NYPD officers 35 years ago were arrested again Tuesday, this time in connection with the death of a San Francisco police sergeant at around the same time.

Police say Anthony Bottom and Herman Bell were arrested in New York prison. The two stand accused of murdering Sergeant John Young back in August of 1971.

Young was shot during a raid at his police station, just three months after NYPD officers Waverly Jones and Joseph Piagentini were shot to death in East Harlem.

Both Bell and Bottom are serving life sentences for the killings.

Investigators say the killings may have been part of a plan by the Black Liberation Army to kill law enforcement officers in New York and California.
Ones herman Bell and A.Bottoms are are found innocent of the California assassinations ,they should file in federal Court a writ on account of the sentence disperity between New York State and fedaralism?

Posted by: eco avila | Feb 5, 2007 8:49:56 AM


Posted by: eco avila | Feb 5, 2007 8:52:00 AM

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