The cloud over the Enron prosecution

I noted a couple of days ago that there was a big problem brewing in the Enron trial, with the specter of possible prosecutorial misconduct regarding the prosecution's destruction of exculpatory evidence in Andy Fastow's government interviews. Today, Tom Kirkendall drops the other shoe, discussing the now unsealed defense supplemental brief: As Tom says:

The brief reveals suppression of exculpatory evidence by the Enron Task Force of a massive scale. The entire brief is devastating to the Task Force's prosecution of Skilling and the late Enron chairman, Ken Lay. * * *

The implications of this brief reach far beyond the Skilling appeal. For example, the already-reeling prosecution of the four Merrill Lynch bankers in the Enron-related Nigerian Barge case would appear to be over -- the prosecution in that case not only withheld exculpatory evidence, but put on incriminating testimony from former Enron treasurer Ben Glisan that directly contradicted the exculpatory evidence that Fastow provided to Task Force prosecutors during his interviews. Other Enron-related criminal cases -- as well as plea bargains -- could well be affected.

For a taste of what the brief shows, consider this summary of evidence relating to the "global galactic" document, which Fastow says summarizes what Skilling purportedly knew about the Enron fraud. Skilling didn't see this document, but Fastow testified that he discussed its contents with Skilling. Yet the authenticity of the document was questionable, as I discussed at the time. Now consider this from the recently filed Enron brief (citations to the record omitted):

Task Force prosecutors called the “Global Galactic” document “three pages of lies” and the “most incriminating document” in Skilling’s entire case. At trial, Fastow testified Skilling knew about Global Galactic because Fastow “confirmed” it with him during a spring 2001 meeting. Skilling denied knowing anything about Global Galactic. To bolster Fastow’s testimony and impeach Skilling’s, the Task Force introduced a set of handwritten “talking points” that Fastow said he prepared in anticipation of his meeting with Skilling. At trial, Fastow swore he “went over” the talking points with Skilling, including the crucial point “Confirmation of Global Galactic list.” In closing, the Task Force relied heavily on this document to corroborate Fastow’s testimony that he discussed Global Galactic with Skilling.

The raw notes of Fastow’s interviews directly impeach Fastow’s testimony and the Task Force’s closing arguments. When shown and asked about the talking-points document in his pre-trial interview, Fastow told the Task Force he “doesn’t think [he] discussed list w/ JS.” This obviously exculpatory statement was not included in the Task Force’s “composite” Fastow 302s given to Skilling. Nor was it included in the “Fastow Binders” the Task Force assembled for the district court’s in camera review of the raw notes. It is not possible that this omission was inadvertent. Fastow’s statement is one of the most important pieces of evidence provided during all his countless hours of interviews. Moreover, in preparing both the composite 302s and Fastow binders, the Task Force extracted and included other—relatively inconsequential—statements from the same interview date and even the same page of notes. The Task Force’s exclusion of this critical piece of evidence for over three years is inexcusable and, on its own, warrants a complete reversal of Skilling’s convictions and other substantial relief.

The defense's 100 page brief asks for dismissal of the case against Skilling, not merely a mistrial.

I'm still waiting for this to capture the attention of the press, which had been so riveted on Fastow's testimony at the trial.

Comments

[Dave Eaton]

The Enron prosecuters remind me of descriptions of Spitzer, in that the press believed that since he was 'crusading for justice' he was doing God's work. All the while, though, it looks like both Elliot and these hooligans you describe were perverting justice, believing they could get away with it because they were on the side of good, or at least because a disgraced executive has few friends.

When Spitzer fell, I saw many blog comments lamenting the loss of "a good guy". After reading the kind of tactics that Spitzer is alleged to have used, he is disqualified from being in the 'good guy' camp. Similarly, if the Enron prosecution is really doing these things, they should find themselves on trial.

I'm not a lawyer, but I think that once the prosecution starts doing evil, whatever the reason, we are in far deeper dung than if some executives run amok.

[jum1801]

After having spent a quarter-century as a federal prosecutor involved in large-scale "task force" investigations and prosecutions of complex financial crimes, I must add a caveat to any defense claims of "prosecutorial misconduct". The allegation is as common and expected as punting on 4th down. It is a standard defense tactic which is taught and refined at scores of seminars for criminal defense attorneys every year. So let's just wait and see what plays out, and not immediately assume the accuracy of characterizations contained in the appellate brief of a man whose very freedom likely depends on establishing to a panel of federal appellate judges that his Constitutional rights were violated.

Now, that being said....There is indeed a higher risk of prosecutorial violations in Enron-size cases which are controlled directly by the Department of Justice, as opposed to the US Attorney's office of the district of prosecution. In such cases I saw repeated instances in which the high-level political appointees in DOJ played very fast and loose with the federal rules of evidence and criminal procedure. The same goes for the FBI: when FBI Headquarters has tight control in a significant case, things will be ordered and done which would ordinarily never be considered by the local FBI agents.

When the stakes are high, Main Justice and FBI HQ are willing to do things which they repeatedly tell their employees "in the field" are firing offenses. Do I know it has happened in Enron? No. But neither does anyone else. Which is why we should just wait and see what happens.

[Lee W. Dodson]

I predict that the next major judicio-political issue will be prosecutor misconduct as evidenced in Texas and elsewhere.

The ability and propensity of a grand jury being able to indict a ham sandwich under the direction of an ambitious district attorney will surface. Liberal prosecutors like Nifong and Eales have let their ends justify their means for far too long. The law of unintended consequences and plain old gotcha politics always backfires, much to the dismay of the do-gooders in power.

Have no doubt. God is not mocked in the realm of judicial fairness, especially. The truth will find them out.

Much like "beauty is skin deep, ugly goes all the way to the bone," shiny, flash and dash prosecutions have all the staying power of newsprint, but integrity never goes away.