Following on the earlier post from today, U.S. District Judge Ewing Werlein has postponed the trial of the Enron Nigerian Barge case. The trial will now begin on August 16.
Enron Nigerian Barge criminal trial postponed
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Monthly Archives: June 2004
What happened to Smarty in the Belmont?
Thoughtful piece on criminalization of business
Professor Ribstein — who is the blogosphere’s foremost commentator on the troubling trend in the government’s criminalization of business — points us to this interesting this New York Times Magazine article in which novelist Mark Costello (most recently ”Big If”) and formerly a prosecutor for nine years addresses the problems involved in attempting to punish all types of crime in a uniform manner. In particular, Mr. Costello notes the sad case of Jamie Olis:
Dynegy’s slogan was ”We believe in people.” Many people working there idolized Chuck Watson and his downright dynegistic saga. One fellow in particular, a pudgy middle manager, had an especially inspiring biography. Born in Korea to a Korean mother and a G.I. father who abandoned the family, the young man came to Texas as a child. He lived in a shack in the wash of an often-flooded gully. At school, the other children beat him and made fun of him. But the lad was bright and resolute, and this is America, where every dream is possible. He went to college on full scholarship. He became a lawyer and a C.P.A. He married, had a child, and at the age of 36 enjoyed the corporate plumage of a throat-clearing title: senior director, Tax Planning and International.
His name is Jamie Olis. Two months ago, he was sentenced to 292 months (let’s call it 25 years), one of the longest prison terms for fraud conspiracy in U.S. history.
Mr. Costello then decries the attempt to take prosecutorial and judicial discretion out of the sentencing process in criminal cases:
If an arraignment is one place to see the truth about a prosecution, a second place would be the other end of the great and ceremonial intestine of the courts — namely, sentencing. Sentencing is where the state can make a statement. We like to think the statement is about right and wrong, the certain bedrock of our values. This would be resonant and satisfying, a good end to the movie. But sentencing, in fact and practice, is a thing of fault lines, feeling versus theory, science against sympathy. We don’t often get what we want from the drama of a sentencing, because we don’t always know what it is that we want. More pain in punishment, like the record whack received by Jamie Olis, and those who’ll follow Olis, will only put more pressure on these fault lines.
Mr. Costello closes with the salient thought that sentencing in criminal cases — as with most issues in life — is not usually black and white:
But in truth, sentencing is more often about wrong and wrong, relative crimes and comparative punishments, the sins of Jamie Olis (who got 25 years) versus those of his co-workers (who could get 5 years), the sins of Mr. Embezzler versus those of the kids from Newark. Everyone is equal and should be treated equally, yet everyone’s unique, or so we think.
As Dickens once said, ’tis a muddle. As we prepare to ratchet up the ”war” on corporate fraud with new shock-and-awe-type sentences, perhaps we should pause, or go slowly at least. Perhaps we should respect the muddle, the humane confusion underneath the act of punishing all criminals — the violent and nonviolent alike. Nine years as a prosecutor taught me this: when we use force (here, a jail cell) without the calm of a theory, the result is rarely something we are proud of.
Professor Ribstein has more thoughts here on the inhumanity of the federal guidelines that constrict federal judges’ discretion in sentencing matters.
Enron Nigerian Barge case cranks up
The first Enron-related criminal prosecution to go to trial since the 2002 case against Arthur Andersen begins today in U.S. District Judge Ewing Werlein‘s court in Houston. This Houston Chronicle story reports on the difficulty of finding unbiased jurors in regard to any trial relating to the demonized Enron. Earlier posts on this particular case may be reviewed here, here, and here.
One of the first issues that Judge Werlein will deal with today is various defense motions to dismiss the case based on the Enron Task Force‘s inexplicably late revelation last Thursday that it possessed potentially exculpatory evidence for the defense in statements that former Enron CFO Andrew Fastow made to the Task Force.
In court pleadings, the Task Force has rationalized the late disclosure on the grounds that Fastow’s statements are not really exculpatory. However, that position is highly dubious in that the Task Force admits that Fastow stated that he never used the word “guarantee” in a key phone conversation in which the defendants participated. In that phone call, the Task Force claims a secret side deal was arranged in which Fastow committed Enron to buy back or broker a deal within six months for an interest in the Nigerian Barges that Enron was selling to Merrill Lynch. Such an agreement would have rendered the sale of the interest in the barges not a “true sale” and, thus, made Enron’s financial reporting of such sale fraudulent.
The Task Force is also attempting to minimize its delay in notifying the defense of Fastow’s potentially exculpatory statements by taking the position that it is not going to call him as a witness in its case in chief, but that Fastow is available to testify if the defense chooses to call him. Inasmuch as the Task Force’s case is based largely on Fastow’s alleged agreement to buy the barge interest back from Merrill, even the most credulous of the Task Force’s allegations will have to strain to accept the Task Force’s reasoning here. Stay tuned to learn how Judge Werlein deals with this issue.
Stros salvage one in St. Louis; updated statistical analysis of season to date
Roy O pitched six strong innings and Miceli, Lidge and Dotel shut the Cards down in the final three innings as the Stros escaped St. Louis with a 3-2 victory. The Stros are now off to Seattle for a three game interleague series with the Mariners, who are a surprisingly horrendous 20-34 this season. Brandon Gopherballworth takes the hill in what may be his last start for the Stros if he does not show any improvement over his recent stints.
The Stros continue to muddle along at 30-25, three and a half games behind the Reds in the NL Central race. The most recent runs created and runs saved against average statistics are out, and they continue to reflect that the Stros have potential, but are underperforming generally. Here are the Stros runs created against average (RCAA) numbers through Saturday’s games (RCAA is explained in this earlier post):
Lance Berkman 39
Jeff Bagwell 13
Jeff Kent 9
Craig Biggio 8
Mike Lamb 8
Eric Bruntlett 1
Adam Everett -1
Jason Lane -1
Orlando Palmeiro -2
Raul Chavez -3
Richard Hidalgo -3
Morgan Ensberg -4
Jose Vizcaino -6
Brad Ausmus -9
The Stros’ net 49 RCAA leads the National League, but, as noted in last week’s post, that number is somewhat deceptive — Berkman, Bags, Kent, Bidg and Lamb have an aggregate 77 RCAA while the rest of the squad is hitting an atrocious -29 RCAA. And despite Vizcaino’s three hits in today’s game, Jimy Williams‘ liberal use of Viz and Ausmus is hurting the Stros — he should be minimizing their play rather than using them to the extent he does. Ensberg and Hidalgo are the best bets to increase their RCAA dramatically, and Williams continues to yank both of them in and out of the lineup like a couple of yo-yo’s. The following sets forth the Stros’ starters OPS (on base average plus slugging percentage) and their rank among other National League teams’ starting players. Also inlcuded are the top ten National League players in OPS):
1 Barry Bonds 1.466
2 Lance Berkman 1.170
3 Albert Pujols 1.088
4 Mike Lowell 1.063
5 Craig Wilson 1.062
6 Sean Casey 1.056
7 Scott Rolen 1.045
8 Adam Dunn 1.035
9 Jim Thome 1.019
10 J.D. Drew 1.010
24 Jeff Kent .907
30 Jeff Bagwell .881
38 Craig Biggio .846
56 Richard Hidalgo .753
66 Adam Everett .724
83 Brad Ausmus .660
Meanwhile, the Stros pitching is performing far below expectations. The following are the most recent runs saved against average (RSAA) through Saturday’s games (RSAA is explained in this earlier post):
Roger Clemens 14
Roy Oswalt 5
Mike Gallo 4
Octavio Dotel 3
Brad Lidge 3
Andy Pettitte 3
Dan Miceli 2
Pete Munro 0
Chad Harville -1
Brandon Backe -3
Wade Miller -3
Ricky Stone -4
Jared Fernandez -6
Brandon Duckworth -7
Tim Redding -8
Clemens’ RSAA remains one of the NL leaders, Roy O’s is decent and likely to go up, and the key relievers’ RSAA are above average and also likely to increase. However, starters Miller and Redding’s RSAA stink, Duckworth is a gopher ball waiting to happen, and the staff’s meager 2 total RSAA is barely above average. Consequently, the Stros pitching staff — thought to be the team’s strength coming into the season — is a mediocre ninth in total RSAA in the National League and is far behind the staffs of their NL Central rivals Cards (34) and Cubs (21).
So, it looks like the Stros’ success or failure this season is going to revolve around whether Hidalgo, Ensberg, Miller, and Redding can improve their generally desultory performances to date. None of the other underperforming Stros’ players appear likely to improve their performance over the remainder of the season. Inasmuch as Bidg and Lamb will likely regress as the season wears on, improvement from these players is essential if the Stros are going to remain in contention in a tough NL Central race against the Reds, Cards, and the Cubs.
When the Reds’ hitting cools off even slightly, look for them to fall out of first place in the NL Central quickly — the Reds’ hot hitting is covering up a poor pitching staff. The Cards and Cubs are currently the most likely candidates to takeover first place when the Reds fall, but the Stros could climb back into contender status if they get better contributions from the players named above.
Ronald Reagan, R.I.P.
National Review Online has the best group of articles on the late former President.
The Wall Street Journal ($) also has an excellent overview of President Reagan’s life and career, and op-eds by former Reagan speechwriters Peggy Noonan and Peter Robinson that provide excellent insights into this American hero.
Brian Leiter has a good summary of contrary views on the Reagan Presidency.
And Jack Balkin has this balanced piece on President Reagan’s legacy.
Clouds on Microsoft’s horizon?
This Seattle Weekly article provides an instructive overview of the problems that Microsoft confronts in maintaining its position in the constantly changing world of computing. The article notes the fundamental problem:
The Web?s phenomenal growth has driven a number of fundamental changes. . . Microsoft seems to have overlooked the most important of those trends. It made a series of missteps, and it?s not clear if it has learned from them. In protecting Windows and Office revenues, Microsoft has innovated less quickly than it could have. The company relies on the same strategy that helped it years ago come to dominate the personal-computer market with the Windows operating system, despite mounting evidence that its customers are looking for a new approach. Competitors such as Linux and Google are gaining, and Microsoft seems unprepared for the road ahead.
Read the entire article, and then consider whether the constant deluge of viruses, adware, hijackers, bots and related plagues are really worth being tied to Microsoft products. Personally, I have just bought my first Mac and my sense is that it will not be my last.
Disassembling Dowd
Maureen Dowd is a New York Times columnist who consistently writes below her considerable talent level. In this article, Catherine Seipp, a Los Angeles-based writer, dissects Ms. Dowd’s columns from the month of May, and it is not a pretty. I hope someone passes it along to Ms. Dowd’s editor. Hat tip to Pejmanesque for the link to this clever piece.
Where did all of this come from?
This NY Times article reports on the investigations into how hundreds of millions of dollars in new U.S. bills found their way into the Iraqi central bank during a period of extreme economic sanctions? As the story relates, there are no final answers at this stage, but the search for those answers is proving to be quite interesting.
Cards rake Stros
The Redbirds teed off on Tim Redding, Mike Gallo, Chad Harville, and Ricky Stone as they rolled to a 10-4 victory at Busch Stadium on Saturday night.
Lance Berkman — whose Bondsian hitting over the past month has been largely wasted because the rest of the Stros’ hitters have slid into mediocrity — was the Stros’ lone bright spot as he rebounded from his hitless Friday night game to drive in all four Stros runs.
The season is only a third old and things can change over the course of a long season, but — at this point — the Stros don’t look particularly competitive against this Cardinal team. Since May 12, the Stros are a rather pathetic 8-14 and beyond Berkman, Clemens, and Oswalt, no player has performed at a consistently above-average level over those 22 games.
Roy O is the Stros’ last hope to salvage a game in St. Louis on Sunday afternoon. Jeff Suppan starts for the Cards.