I've been thinking about something that one of my German professors said about how German criminal law functioned. Germany, as a civil law country, has a very deep and very detailed body of statutory law. Every crime, every element of every possible chargeable crime, is enumerated in some statute. No one can ever be convicted of any crime that is not so explicitly spelled out. There is no room in German criminal law for any sort of interpretation of these statutes - either they clearly articulated that the charged behavior was illegal, or it was not illegal. Any other result would be unconstitutional.
This is unlike the United States, the professor said, where under common law people can be convicted under general terms, even when there's no law specifically against their behavior.
I think he may have been overstating the case. The picture he paints is that in the United States we have but a few large buckets of crimes that we can always find some excuse to dump particular actions into. (For instance, was it murder? Well it could be murder if we interpreted what happened in this way... So there you go, it gets dumped into the murder bucket.) However, in actuality many jurisdictions have much more specific statutes that do delineate crimes with more detail. The US is not nearly the wild west of vague common law criminality that he seemed to think it was.
On the other hand, even under statutes there's a lot more room for interpretation than in Germany. Vagueness is much more tolerated in the American system of jurisprudence, not just by the lawyers trained to manipulate the ambiguity in a way that best advocates their position, but even the public at large, who understands the concept of crime even if it doesn't always understand the law governing it, as it tries to find some sort of legal consequence to drape around its notions of right and wrong.
In this vein, I was reflecting on the Enron trial. Many business law theorists are reflecting on the Enron trial and struggling with the result - Ken Lay and Jeff Skilling's guilty verdicts - because it looks to them as though the behavior that effectively became criminalized (through the jury verdict) under the actual law may not have clearly been delineated as criminal.
Such a result could be troubling, not only because it could chill the necessary and reasonable behavior of other executives who might not be able to effectively steer their companies without fear of prosecution, but also because in a larger sense it violates our notions of justice and fair play if people can get into trouble for things they weren't fairly put on notice as being wrong because the system is able to make ad hoc post hoc decisions about their wrongfulness.
On the other hand, such flexibility is a pillar of the American system of justice. Whereas in Germany every single wrongful act must be anticipated, in the US that is not necessary. Our system inherently provides a broad framework for which a case-by-case analysis of the instant facts can determine where (if anywhere) the alleged criminal action may fall within it.
Still, there is tension within this system. In some ways it's capable of producing more justice; in other ways less. Examples where it can achieve more often lie with juries who are best able to suss out wrongfulness. With jury nullification they are able to take a behavior that, while technically illegal may not also have been wrongful, and thus exonerate it. So in theory juries may also be able to do the reverse and take an action that, while perhaps not strictly illegal, was wrongful enough to be deemed criminally culpable.
There is, of course, a limit to how cheered we should be about this possibility. It would be manifestly unfair and unjust if juries could convict simply because something seemed wrong - without any connection to any actual criminal law forbidding it. But to the extent that our criminal law, whether by common law or statute, is inherently flexible, as long as the ultimate result fits within the framework of criminality, perhaps it's not a bad thing for the jury to have discretion to find some way to put it there.
Their discretion is still limited, of course, through the general framework of criminal law and the rules of evidence governing what they might be able to consider in reaching their verdict. They are not supposed to go beyond what is presented to them. But do they? And if so, is it perhaps necessary?
Juries are always informed by something beyond the scope of the trial - their own life experience, for example. In the case of the Enron trial jury members later spoke of how their own professional requirements for taking responsibility affected how they saw the Enron executives' duties of responsibility. Yes, their conclusion was affected by information not gleaned through trial, but we expect that to happen with juries. That's why the concept of a "jury of peers" is so important, because we want people with equivalent experience to judge each other. (It's when they don't have equivalent experience that juries are in no position to judge whether a behavior was truly wrongful.)
The question with the Enron verdict therefore is to what extent the jury was informed by matters external to what was specifically presented at trial, and to what extent that extra-judicial information matters in whether the result was just. To answer the former question would require a culling of the evidence actually presented. I do, for instance, find it interesting that none of the commentators have mentioned FERC or the California blackouts. There is reason to suspect that Enron, as governed by Lay and Skilling, was behaving wrongfully - perhaps even illegally - with respect to market manipulations and undue influence with regulators, and that the heights from which Enron eventually tumbled may have all been wrongfully attained at the outset. So I don't know if evidence along these lines was considered during the trial. I also don't know if it should have been considered doing the trial. On the one hand, it may have had little to do with the specific crimes charged. On the other hand, if the trial was all about the fall, perhaps it would be relevant to have considered what had created the perch from which they fell in the first place.
This moves us to the second question then, of whether and to what extent it was just and fair for the jury to have filled in the blanks with their sense that something generally was wrong with Enron. Although it has happened before, probably lots of times, it is not considered fair for bad people to have finally been punished for things they didn't do, just because it was the only charge they couldn't actually come up with a defense against. We don't tolerate that kind of vengeance. Criminal law is not to be a weapon of blunt force trauma to finally nail a bad guy; it's a weapon requiring finessed application in order to only capture the portion of activity specifically deserving of punishment.
On the other hand, if, when presented with the evidence at trial, the jury was left with a sense that there was something very wrong with the whole situation, is it equally unjustly overreaching to allow that perception to color their final inquiry of whether the defendants were actually guilty of the crimes accused? Our system is an inherently flexible one - might this not be an occasion where it was of most use?