As this Chronicle article reports, the evidentiary phase of the Enron Broadband trial closed on Friday as the prosecution rested after putting on a thankfully short rebuttal case that lasted less than a day in a trial that just finished the three month mark. The attorneys in the trial and U.S. District Judge Vanessa Gilmore will meet on Monday to finalize jury instructions and then, on Tuesday, final arguments in the trial will begin.
Interestingly, the Chronicle article on the trial did not report on another potentially important incident of Enron Task Force misconduct that occurred as the defense case wound down this past Thursday afternoon.
During a trial in which the prosecution has already elicited false testimony from its key witness and treated two witnesses (Beth Stier and Lawrence Ciscon) in such a manner that both testified that they felt threatened, Judge Gilmore harshly rebuked Enron Task Force prosecutor Cliff Stricklin for asking a question on cross-examination of defendant Kevin Howard that, if not in direct violation of a limine order (i.e., a pre-trial order directing attorneys not to refer to certain subjects during the trial), at least violated the judge’s prior instructions to the Enron Task Force prosecutors.
The rebuke came at the end of cross-examination of Mr. Howard when Mr. Stricklin asked a question about Canadian Imperial Bank of Commerce (“CIBC”), one of the bank’s that provided financing for the Enron Broadband unit. CIBC entered into this deferred prosecution agreement with the Enron Task Force back in December, 2003 and Judge Gilmore had apparently at least instructed Enron Task Force prosecutors not to ask any questions on that agreement during the Enron Broadband trial. The following is the exchange that occurred:
Mr. Stricklin: In fact, Enron went to CIBC often to fund such deals, isn’t that correct?
Mr. Howard: We had set up a very large investment to fund with a number of banks.
Mr. Stricklin: Including CIBC, is that true?
Mr. Howard: Yes, sir.
Mr. Stricklin: And are you aware that [CIBC has] entered into a deferred prosecution agreement with the Department of Justice . . .
Mr. Howard’s defense attorney: Objection, your Honor!
Judge Gilmore: Stop! Mr. Stricklin, just stop it right now! Have a seat! That’s the end of the questions!
With that, a clearly angered Judge Gilmore — standing in front of her seat on the bench — terminated any further questioning of Mr. Howard by Enron Task Force prosecutors and excused Mr. Howard as a witness. Taking advantage of Judge Gilmore’s reprimand of Mr. Stricklin for emphasis, each of the attorneys for the five Enron defendants promptly announced that each of the defendants had completed putting on their defense.
Given the recent similar incident that occurred in the trial of former HealthSouth Corp CEO Richard Scrushy, it appears that we can now add ignoring judges’ instructions — in addition to at least chilling defense witnesses and making disingenuous market loss claims — as another dubious tactic that Department of Justice prosecutors are willing to use in attempting to taint a jury against unpopular business defendants. However, that tactic backfired in the Scrushy trial, and the use of the tactic in the Enron Broadband trial smacks more of desperation in a prosecution team that is clearly worried about the outcome of a trial that they thought would be the legal equivalent of a tap-in at the outset.