The Price of Favorable Testimony

In response to my recent lengthy posts on the injustice of the conviction and brutal sentencing of former Enron executive Jeff Skilling, many folks who have not followed the Enron criminal cases closely have observed to me that they did not realize that the Enron Task Force relied almost entirely on testimony from cooperating witnesses who had copped pleas with the Task Force in convicting Skilling.

That approach, coupled with the Task Force’s equally dubious tactic of freezing exculpatory testimony for Skilling and the late Ken Lay out of the trial, raises serious appellate issues regarding the legitimacy of the entire prosecution against Skilling and Lay.

Interestingly, the same dynamic is at play in the current prosecution of the Milberg Weiss law firm. Larry Ribstein has been at the forefront of pointing out the injustice of the prosecutorial tactic of “paying” witnesses and proposing a framework for addressing it.

Recently, Professor Ribstein posted the paper that he and Bruce Kobayashi are developing on this issue, The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation, which includes in its abstract a wonderfully cogent sentence regarding the essence of the problem:

[T]he . . .important hypocrisy is that Milberg’s prosecutors are essentially paying the same witness . . . that Milberg is being prosecuted for paying.

More on health insulation policies

Arnold%20Kling%20011007.jpgThis previous post reported on Arnold Kling’s insightful Cato Unbound piece in which he explains how America’s health care finance system is being undermined by health “insulation” policies rather than real health insurance.
Kling’s article has provoked three excellent responses, including this one from Duke University professor Clark C. Havighurst, who has taught courses and written on health care law and policy, antitrust law, and economic regulation at Duke since 1964. Professor Havighurst explains cogently how the tax subsidy on employer-based health insurance has become a destructive force in the health care finance system and why it survives despite the fact that everyone knows that it is the principal cause of wasteful spending on health care:

The tax subsidy thus introduces new ìmoral hazardsî into health care decision-making. Not only are employers, union leaders, legislators, and courts happy to commit employee-votersí money in ways that make themselves appear to care about health above all things, but their stake in not having to say ìnoî to more and better health care also coincides perfectly with the preferences of the politically powerful health care industry. For these reasons, the tax subsidy has survived through political thick and thin even though every policy wonk knows that it is a principal cause of wasteful spending on health services. Liberals, of course, resist proposals to fix this glaring defect in the incentive system that drives health care spending. Why fix incentives to encourage consumers to make more appropriate health care choices when big government stands ready to choose for them?

Read the entire Havighurst piece, as well as this one by Jonathan Cohn, (a New Republic senior editor and the author of Sick: The Untold Story of America’s Health Care Crisis ó and the People Who Pay the Price, which will be published by HarperCollins later year) and this one by Matthew Holt (author of the Health Care Blog), both of whom favor a universal care, one-payor system administered by government. Holt, in particular, provides a pithy explanation of why meaningful reform of the health care finance system is so difficult to achieve:

[T]he political strength of the health care system actors combined with the disaggregated weakness of the consumers and those paying the bill ó intermediated by the costs of health care being hidden within overall employment compensation and buried in the murky finances of the federal government ó has meant that the system has chewed up and spat out any serious attempt to reform it since the 1930s.

Update: All of the authors have now responded to each other pieces in this cyber-conversation.

The ultimate risk of a wrongful prosecution

death%20penalty%20011907.jpgThe US Supreme Court’s strained relationship with Texas and the Fifth Circuit Court of Appeals over death penalty cases — which was previously discussed here and hereis back in the news as the high court again takes up the case of LaRoyce L. Smith, who was convicted and sentenced to die for the murder of a former co-worker. The Supreme Court overturned the sentence in 2004, but the Texas Court of Criminal Appeals promptly reinstated the conviction on the ground that the constitutional error that the Supreme Court had identified was harmless. The main issue in the second appeal is whether the Court of Criminal Appeal’s response was an appropriate one to the Supreme Court’s previous mandate in the case.
As the article points out, the recent history of capital punishment in the United States is inextricably tied to capital punishment in Texas, where 380 prisoners have been put to death since the Supreme Court reinstated the death penalty in 1976. That number is far more than any other state — Virginia is second with 98.
Meanwhile, this Ralph Blumenthal/NY Times story reports on a case that reflects the main reason why I oppose the death penalty (previous posts here, here and here) — a 50 year-old Dallas black man being exonerated by DNA evidence after serving nearly half his life in prison after being wrongfully convicted of rape. It is the 12th such case in Dallas County alone of a conviction being overturned by DNA evidence since 2001.
Finally, sentencing expert Doug Berman provides this post and related links explaining why the Supreme Court’s fixation on death penalty cases is not such a good thing.