A Step Closer to Ken Lay?

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While Enron (OTC: ENRNQ) doesn't hog the headlines anymore, the fact that none of the big perpetrators have gone to jail as of yet seems to hang over the financial markets. How can we even think that the marketplace is being cleaned up when the folks responsible for one of the biggest securities frauds in history still walk free? But while the surface may seem to be a little bit too smooth, prosecutors have been toiling for more than 2 years now trying to build the case against Ken Lay, Jeff Skilling and company.

Andrew Fastow, former Chief Financial Officer, and his wife Lea, also an executive at the company, were reportedly close to agreement with prosecutors on a plea bargain arrangement that would send her to jail for five months and him for 10 years.

Mr. Fastow was charged in 2002 with 98 counts of criminal fraud, insider trading, money laundering, and other crimes, and is scheduled to go on trial in April. He would be the highest-ranking Enron employee to be convicted of crimes stemming from the company's ignominious collapse in December 2001. Mrs. Fastow served as treasurer of the company, and is charged with money laundering conspiracy for her part in setting up friends to serve as outside partners in the bogus special purpose entities that should have been consolidated on Enron's balance sheet.

I continue to hear from a large number of people who ask the same question: "Why is it that Ken Lay is still a free man?" Kenneth Lay, for those of you who were on Mars or trapped on a desert island, was Enron's Chairman, a good friend of President Bush's, and presided over a spectacular fleecing of American investors. I've spoken to plenty of prosecutors and asked this question myself. The answer, when people aren't babbling on about conspiracies and Bush "looking out for Kenny Boy," are nearly uniform. Getting individual convictions in corporate crimes is extremely difficult, and the far greater disaster than having him float free for the time being would be for them to rush a case, go to trial, and fail to get a conviction.

In a corporate setting it is too easy for the people at the top to claim that they didn't know illegalities were taking place, and it's just as easy for underlings to lay the blame on demands made by their superiors. These types of cases require substantially more intense research than most other kinds of criminal prosecutions, and convictions are harder to come by. Getting the Fastows -- legitimate targets in their own right -- to exchange lesser sentences for information could prove crucial to cases against Lay and CEO Jeffrey Skilling.

As of this writing, the plea bargain agreement is not a done deal. The length of sentence against Fastow is troubling, though. How valuable could the information he offered have possibly been if the best he could do was to knock his sentence down to a decade in the clink?