Relentlessly avoiding addressing the real issue, this NY Times article speculates that the problem with Eliot Spitzer’s recent unsuccessful prosecution of Theodore C. Sihpol, III was not that he charged Mr. Sihpol in the first place, but that he should have charged all of Mr. Sihpol’s superiors, too.

In so speculating, the Times confirms that it still does not understand that the governmental policy of regulating business through criminalization of merely questionable business transactions is a slippery slope toward injustice that ultimately undermines the rule of law.

Take the case of William Fuhs. He is the former mid-level Merrill Lynch executive who was recently convicted and sentenced to over three years in prison as a result of his participation in the Enron-related Nigerian Barge case.

As has already been noted in regard to the conviction of Daniel Bayly — the former head of global investment banking at Merrill Lynch and one of Mr. Fuhs’ bosses — the government’s prosecution of the Merrill Lynch executives in regard to the Nigerian Barge transaction was dubious, at best. The resulting convictions are a plain miscarriage of justice.

As with its prosecution of Mr. Bayly, the government’s case against Mr. Fuhs strains credulity.

Of the four Merrill Lynch defendants in the Nigerian Barge case, Mr. Fuhs was the only one who was not a managing director of Merrill Lynch. Mr. Fuhs did not participate in the one telephone conference with former Enron CFO Andrew Fastow in which Mr. Fastow allegedly assured Mr. Bayly and other Merrill Lynch executives that Enron would find a buyer within six months of the interest that Merrill was buying in the barges.

In fact, Mr. Fuhs’ only role in regard to the transaction was the ministerial processing of the transaction after Merrill Lynch had agreed to buy the interest in the barges from Enron.

Incredibly, during the government’s case-in-chief in the Nigerian Barge trial, none of the government’s fact witnesses knew or interacted with Mr. Fuhs — indeed, the only government witness who had ever worked at Merrill had neither met, spoken to, nor even heard of Mr. Fuhs!

Mr. Fuhs never conferred with anyone at Arthur Andersen (Enron’s auditors) regarding the transaction and the deal was the only Enron transaction that Mr. Fuhs ever worked on.

In short, the government presented no witnesses or evidence during its case-in-chief that Mr. Fuhs — who is not an accountant — had any idea that Enron’s booking of a $12 million gain on the Nigerian Barge transaction was arguably improper, much less that he intended to promote Enron’s accounting of the transaction.

Nevertheless, while Mr. Sihpol walks away from the New York courthouse a free man, Mr. Fuhs — a young man with a wife and two young children — faces a shattered professional and family life and 37 months in federal prison.

As Professor Bainbridge noted in this TCS op-ed and Professor Ribstein has repeatedly observed, the contrasting results in the cases of Mr. Sihpol and Mr. Fuhs — not to speak of the sad case of Jamie Olis — confirms that the pursuit of justice in such cases has become a sort of lottery.

If the prosecution pursues a bit player such as Mr. Fuhs but can come up with something particularly distasteful to the jury — such as Merrill Lynch’s involvement with the corporate pariah, Enron — then it wins.

On the other hand, if the government slams a little guy such as Mr. Sihpol while not pursuing his dastardly superiors, then the government loses.

This is a radical abuse of our criminal justice system, and the carnage to the families of Martha Stewart, Mr. Bayly, Mr. Fuhs, Mr. Olis and others who are caught in this troubling spiral simply cannot be responsibly dismissed as a “trade-off” of an imperfect system.

But as great as my compassion is for members of those families, my even greater concern is for the principles of justice and respect for the rule of law upon which the success of our society is largely based.

If we lose those, then, as Sir Thomas More asked Will Roper in A Man for All Seasons, “do you really think you could stand upright in the winds [of abusive state power] that would blow then?”