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May 3, 2005

"You guys scare me to death"

EBS1.jpgFollowing this development from Monday, the Enron Task Force prosecution is now clearly in serious damage control mode in the ongoing criminal trial against five former Enron Broadband Services executives in Houston federal court.

As this Mary Flood Houston Chronicle story reports, the prosecution hurriedly changed course after the prosecution's key witness -- former EBS CEO Ken Rice -- was forced on Monday to admit during cross-examination that he had falsely testified on direct examination that defendant Rex Shelby had made certain statements to an analysts' conference in 2000.

After Mr. Rice was finally excused on Tuesday after eight days of increasingly grueling testimony, the prosecution departed from its pre-trial witness list and called Beth Stier, who works for a company that previously provided independent contractor video services for Enron. That company continues to maintain a large library of Enron-related videos, and the company is currently providing consultant services for the criminal defense team of former Enron CEO Jeff Skilling.

The source of confusion in Mr. Rice's testimony was a videotape of the analysts' conference that the prosecutors used in examining Mr. Rice. That particular video contained a segment of Mr. Shelby's comments that Mr. Rice contended had been shown at the analysts' conference.

However, the defense revealed this past Friday that the prosecution had used the wrong video and that the raw footage video of the analysts' conference clearly showed that the segment containing Mr. Shelby's comments had not been played for the conference. On Monday, the defense was allowed to show the jury the raw footage video that proved that the segment containing Mr. Shelby's comments had not been played for the conference.

Ms. Stier testified on Tuesday that she had originally taped the segment with Mr. Shelby for the conference, but that the segment was not used during the conference and that she had later inserted the segment into an edited version of the videotape at the request of Enron's investor relations department. Ms. Stier also admitted that she had given the prosecution a copy of both the edited videotape that the prosecution ended up using in examining Mr. Rice and also the raw footage videotape that the defense team used on cross-examination to impeach the credibility of Mr. Rice's testimony.

During her testimony, Ms. Stier then revealed that the Enron Task Force prosecutors had hauled her down to the Federal Courthouse over this past weekend to question her over the videotapes after they first became aware of video mixup during cross-examination of Mr. Rice last Friday. During the weekend questioning, Ms. Stier apparently hedged her answers to prosecutors' questions regarding the work she has done for the Skilling defense team. Accordingly, when the prosecution asked her today on the witness stand whether she had lied to the prosecution in answering those questions over the weekend, Ms. Stier admitted that she had been very careful about her answers and then added:

"You guys scare me to death. I do not want to lie to you."

As noted in this earlier post, the damage from the prosecution's use of the wrong video on Mr. Rice's direct examination could have been limited by the prosecution's forthright admission of its mistake. However, from the report of today's proceedings, the prosecution not only failed to adopt that approach, but inexplicably compounded the damage from its previous error by attempting to shift the blame to a frightened woman on the witness stand before a predominantly male jury. Such a major tactical blunder is a clear sign of a panicked prosecution.

Consequently, a trial that formerly looked like a sure-fire winner for the Enron prosecution has now turned into a real horse race. Stay tuned, for this trial is has just become very interesting.

Posted by Tom at May 3, 2005 9:19 PM |

Comments

I think that this was an insightful article, that being said I wish that the bias of the court and Mary Flood where mentioned. I am not sure if you have attended any of the trial or have had the opportunity to read the transcripts but there is a definite bias by the judge toward the prosecution and no one has mentioned that. The judge has sustained 99% of the prosecutions objections while overruling 99% of the defenses objections. After reading last Friday?s transcripts I was very surprised that there was no mention anywhere of how outrageous the judge was acting toward the defense. She literally was yelling at them. This judge?s behavior is a serious cause for concern because if any of these people are found guilty there is a very strong case for a mistrial. On the media side Mary Flood has yet to report both sides of the story leaving out key information that would give her readers a true picture of what is actually taking place. It is no surprise to me that people don't understand how people like Robert Blake can get off when all they read is the slanted reports of the liberal media. I guess the truth is not as important as selling newspapers. I just wish that some one in the media had the where with all to point this out.

Regards,

Ed

Posted by: Ed at May 4, 2005 9:23 AM

Ed, I think you make more of a case for blogs than a valid criticism of Ms. Flood's reports. For example, I alluded to that bias in noting the odd nature of Judge Gilmore's ruling in not admitting the raw footage video on Friday in my Monday post on the Broadband trial.

I have read Ms. Flood's coverage closely over the past four years and I think she has done an outstanding job for the job that she is employed to do -- that is, report even-handedly the key events that take place each day in regard to Enron. Her stories almost always contain quotes from both prosecution and defense sources, and her stories -- which are mostly daily reports that are not intended to be in-depth analysis -- hit objectively on the key points.

During the short periods of time that I have been in the courtroom during the Broadband trial, you are correct that Judge Gilmore has exhibited a pro-prosecution bias, perhaps best exhibited by her chastizing the jury last Friday afternoon for laughing at Prosecutor Campbell for making Tony Canales ask Mr. Rice meaningless foundation questions in preparation for introducing a clear business record into evidence. However, I don't believe that it would be proper under journalistic ethics for Ms. Flood to insert her views regarding the Judge's apparent pro-prosecution bias into her stories, even if she were to agree with that assessment. Moreover, the above-described incident -- although an example of the Judge's pro-prosecution bias -- was not a key part of the day's proceedings and, thus, did not merit mention in Ms. Flood's story.

Accordingly, I agree with you that Judge Gilmore has exhibited a pro-prosecution bias so far in the Broadband case. However, I disagree that Ms. Flood's decision not to report that inherently subjective assessment is an example of liberal media bias. Rather, the place for those types of assessments is in the blogosphere, which is the natural extension of what the mainstream media provides.

Thanks for reading HCT!

Posted by: Tom Kirkendall at May 4, 2005 9:56 AM

Tom, this is an excellent, excellent, blog, and I find your articles on Enron and Tyco very insightful and a must read.

Posted by: gunroom at May 4, 2005 11:07 AM

Gunnar, thanks for the kind words!

Posted by: Tom Kirkendall at May 4, 2005 11:26 AM

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