Death of a disgraced energy salesman
By Bethany McLean and Peter Elkind, Fortune Magazine

(FORTUNE Magazine) -- Shocking. That's the first word everyone uses to describe the death of former Enron CEO Ken Lay from a heart attack at 3:11 A.M. on July 5 in Aspen. But after that, the words run the gamut. Tragic. Suspicious. Infuriating.

All those reactions are understandable. Lay's death was shocking. During the trial of Lay and Jeff Skilling last spring, it was Mike Ramsey, Lay's lead lawyer, whose health claimed the headlines as he left the courtroom in March due to his own heart problems. Over the four-month trial, which ended in late May with a guilty verdict for Lay on six counts of fraud and conspiracy, observers did contemplate how stressful it must be for the defendants. You came to see them as people, not cardboard-cutout villains. But no one ever thought it would end like this.

Tragic? Lay's death, and indeed his life, are that. He was a man who came from nothing, the son of a Baptist minister whose family had no indoor plumbing until Ken was 11 years old. He rose by virtue of his ambition and intelligence to become the CEO of what was once America's seventh-largest company. And Enron was even bigger than its numbers suggested. It was heralded as the best of the new world of business, and Lay was a corporate god. Or so it seemed until Enron's plunge into bankruptcy and the subsequent revelations of the fraud permeating the company. The drama was only heightened, of course, by the vast fortunes Enron temporarily created--during a historic run-up in the stock market--and the retirement accounts it destroyed. Now Enron is shorthand for all that was wrong with business at the turn of the century. You can see in Lay's rise and fall a story that transcends its time. "Ken Lay? King Lear!" as one Fortune reader wrote.

There's also plenty of suspicion, because an ending like this one seems too convenient, too made-for-TV. Lay was likely to get a prison sentence of at least 15 years; now he won't serve a day in jail. The New York Post's screaming headline said it all: "Before they put Cheato Lay's Coffin in the Grave, CHECK HE'S IN IT." An autopsy confirmed that he died of clogged arteries, but that will never stop the conspiracy theories--especially given Lay's well-known ties to the all-powerful Bush family. Expect to hear of Elvis-like sightings of Lay in the coming years.

Meanwhile, there's the rage. "Glad he's dead, may he burn in hell. I will dance on his grave," a former Enron employee told the Houston Chronicle. Some Fortune reader responses: "The only thing to be sad about with Lay's death is that it came before he had to suffer any justice in this world." "I hope his family gets everything confiscated and thrown out on the street." "Lay should be vilified forever." "Ken Lay was a thief who got caught, a small man who stole people's lives in order to inflate his fragile ego." "His death was a cop-out." "He was a pig."

The fury stems from the sense that Lay has somehow managed to elude justice by going to his grave instead of doing penance in a jail cell. It's compounded by a legal technicality, which is that Lay's death vacates his criminal conviction because he had not yet exhausted his right to appeal. And it means that the government's efforts to seize $43.5 million of Lay's money as forfeiture for his crimes have been stopped in their tracks.

In all of this, it's worth remembering a few things. One is that prosecutors will probably pursue civil remedies to claim the money from Lay's estate. It may be a long path--in effect, they will have to prove their case all over again, and in a civil case different rules apply as to what money can be claimed. But the standard of proof is also lower in a civil case. In any event, it's unlikely that Lay's family will get a windfall as a result of his death.

Another point is that the $43.5 million was a figure based on principle, not practicality, because Lay didn't have $43.5 million. In fact, he claimed he was broke. The government claimed otherwise, but whatever the right number is, it is less than $43.5 million. And in terms of restitution for victims of Enron's fraud, Lay's money is a drop in the bucket. To put it in perspective, civil lawyers have already collected more than $7 billion from the Wall Street banks that enabled Enron.

Last, the setting aside of Lay's criminal conviction is really a legal technicality. Nothing will ever change the fact that after a long, fair trial, 12 people found Ken Lay guilty of fraud and conspiracy. Nothing will change Lay's legacy now; he will have no Michael Milken--like redemption. He lost his fortune, his reputation, and now his life. What more is there to lose?  Top of page