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Questions for the lawyers


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OK. From what I understand, Lay was indicted, tried, and found guilty of several felonies with sentencing recommendations of a minimum of 25 years. IMHO, he is a flight risk since he has got to have money stashed away offshore and he knows that he will die in prison. He was found guilty 6 weeks ago and had not been sentenced yet nor has he served any time (I'm assuming since he died at his sumptuous resort in Aspen).


I understand that, after indictment, the Judge decides whether you can be released on bail and how much the bail should be (based upon the danger you pose to society and your flight risk). However, after indictment, you are presumed innocent. Therefore, serious consideration should be given to not incarcerating you wrongfully. After a verdict, you are guilty. Ipso facto, the State can commence your punishment immediately. Or not?


Why wasn't Lay taken immediately into custody after the verdict? For criminal cases, don't you start serving your sentence then appeal while you're in prison?


Can someone explain the law in this area? Is whether he is held in custody (between verdict and sentencing) at the Judge's discretion? Why does it take over 6 weeks to sentence him?


It just seems to be an injustice that he can enjoy his lavish lifestyle for weeks (maybe even months) after he's been conviced.


One more dumb question. What is the difference between arraignment and indictment?

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Sentencing is a separate phase of a criminal trial. You find guilt, and then the state gets to put together a case for why you should be put away for a certain length of time (usually the maximum, because prosecutors are just greedy that way) and the defense gets to argue mitigating factors. Sometimes people are called to testify -- without the rules of evidence applying, as they do in the trial, so you don't worry about hearsay and stuff like that -- arguments are made, all that good stuff.


This usually, although not always, applies to felony charges. Misdemeanor convictions often have the sentencing phase immediately after a finding of guilt.


I wouldn't be surprised if the bulk of the preparation of Lay's attorneys was directed to the sentencing phase. Defense lawyers will do that if the state has an overwhelming case.


It's an amazingly important process of a criminal trial that is almost always glossed over on TV because it's just not sexy. I've had many a client where the judge told me he was sending my guy to jail, only to have the judge change his mind on the bench after hearing from various people pledging to support the defendant if he received probation, or some other such mitigating factor.


Based on my experience, how much you were perceived as a flight risk is generally in inverse proportion to how much money you have. That's actually not as cynical as it sounds: People with money tend to have strong ties to the community, which makes them less of a flight risk than someone with no ties to the community. A person with prior felony convictions is more of a flight risk than a person with no criminal history. Mandatory minimum sentences and the type of crime (personal v. property) can also play into the evaluation of whether you are a flight risk. Et cetera.


The flight risk is generally dealt with at the time of arraignment -- if you are not considered a flight risk for the trial, you are also probably not a flight risk before sentencing. And vice versa. Whatever bond is posted generally (but not always) continues until the sentencing phase.


To use a famous example, OJ was considered a flight risk, which is why he was incarcerated before and during his trial. Had he been found guilty, that incarceration would have continued through the sentencing phase. And as I recall, his running away in the Bronco was a big part of the state's argument that he was a flight risk. Absent that, he may have stayed out of jail completely.


An indictment is a formal charging instrument. An arraignment is your initial appearance before a court where you are formally informed of the charges brought against you. Usually, the judge reads you the indictment and asks several questions for the record, like if you understand the charge, if you've received a copy of the charge, your plea (always not guilty), etc.


That's really an off the cuff answer avoiding legal jargon from a guy who hasn't practiced in several years, but I hope it helps.

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Thanks Misfit.


Couple more questions.


Flight risk: I agree that those with ties the the community/money may be lesser flight risks. However, in Lay's case, I see him as a high risk. He is rich enough to have big offshore money and he would be sentenced for the rest of his life. Therefore, if it was the judge's discretion, I think he was wrong. No way Lay should be lollygagging in luxury, and a possible flight risk between verdict and incarceration. Martha Stewart, with a short sentence and a lot to live for....I'm OK with her being out during the interval between verdict and incarceration. Lay...no way.


Is holding the convicted the judge's decision or does a white collar criminal have to be set free (presumably on bail) during this period?

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The other thing to look at, is was he a danger to society? His crimes were of the white collar nature. Nobody was going to be dumb enough to entrust him with there money, so even if he did flee the country, the state or fed would have been better off, because then they wouldn't have to pay for his room and board, and could have probably frozen and maybe even taken control of his assets.

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