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July 1, 2005

Is the prosecution engaging in witness tampering in the Skilling - Lay criminal case?

Skilling2.jpgI was at the Federal Courthouse yesterday for a late morning hearing and decided to stick around and pop into an early afternoon status conference in the government's biggest Enron-related criminal case -- that is, the case against former Enron chairman Ken Lay, former Enron CEO Jeff Skilling and former Enron chief accountant Richard Causey. As with my decision to attend this earlier hearing, I'm glad I decided to stick around. What appeared to be a routine status conference turned out to be anything but.

Midway through the conference, U.S. District Judge Sim Lake announced from the bench that he had received an ex parte motion from the defendants that had been filed under seal. Without revealing the contents of the motion, Judge Lake stated that he had concluded that the defendants had established a prima facie case of entitlement to the relief that they were requesting in the motion, which he disclosed was the right to subpoena under Fed. R. Crim. P. 17(c) all evidence relating to communications between the Enron Task Force and the 15 former Enron employees who have pled guilty under plea arrangements with the Enron Task Force. Judge Lake stated that he would first review all documents and records produced in camera and then turn over to both defendants and the prosecution copies of all documents and records that are relevant to the issues raised by the motion.

ken lay8.jpgAs a clearly unsettled Enron Task Force prosecution team looked on, Judge Lake went on to authorize the defendants specifically to issue subpoenas for evidence of all communications with the Task Force to the 19 attorneys who have represented the 15 former employees in negotiating their plea arrangements with the Task Force. When the Task Force prosecutor raised a flustered objection to the ruling and requested an opportunity to respond to the defendants' ex parte motion, Judge Lake summarily overruled the objection and stated that he was persuaded by the defendants' motion that the relief was justified. Chronicle Enron reporter Mary Flood's article on the status conference is here.

So, the $64,000 question is this -- what on earth is in the ex parte motion of Messrs. Skilling, Lay and Causey that would prompt Judge Lake to grant this rather extraordinary relief without so much as a response from the Enron Task Force?

Although the motion remains under seal and is not available for public review, my speculation is that the motion is focused on the Enron Task Force's dual tactics of threatening potential defense witnesses in the Enron-related criminal trials with indictment if they testify and bludgeoning former Enron employees to enter into plea arrangements under which they would provide favorable but false testimony in prosecutions of other Enron-related defendants.

That speculation is supported by recent revelations in connection with Enron-related criminal cases. First, several key defense witnesses in the Nigerian Barge case declined to testify on Fifth Amendment grounds because the Task Force had fingered them as targets of the Enron criminal investigation. Then, as noted in this earlier post, former Enron Broadband engineer Lawrence Ciscon dramatically testified earlier in the ongoing Enron Broadband trial that Enron Task Force prosecutors had repeatedly threatened him and had fingered him as a target of an indictment in attempting to dissuade him from testifying on behalf of the five Enron Broadband defendants. Moreover, as noted in this earlier post, former Enron Broadband co-CEO Ken Rice testified falsely during the prosecution's case-in-chief in the Broadband trial after entering into a plea arrangement with the Task Force, and that false testimony was followed by testimony from another witness that she felt threatened by the Task Force in connection with her testimony regarding Rice's false testimony. Finally, as this earlier post noted, the Task Force has set a dubious record by naming 114 co-conspirators in the Skilling-Lay-Causey case, which is just another transparent attempt to chill potential defense witnesses from testifying during the upcoming trial in that case.

Consequently, what this development closely. As noted in this post, the Enron Task Force has been quite successful in the court of public relations in painting anyone having anything to do with Enron as a criminal. However, in actually having to prove its allegations in court (as Professor Ribstein notes in this post from yesterday), the Task Force has been far less successful and now it appears that one federal judge is openly skeptical of the tactics that the Task Force has been using to deter defense witnesses from testifying and to generate dubious testimony under plea arrangements. That government prosecutors believe that they cannot prevail in their prosecutions of Enron-related criminal defendants without engaging in such troubling tactics is more strong evidence that the government's policy of criminalizing business transactions has gone seriously awry.

Posted by Tom at July 1, 2005 4:30 AM |

Comments

My comment is that prosecutors, such as Eaststep from Houston,Tx, made a deal to my husband Guadalupe A Vasquez. He agreed that if my husband would cooperate with him or the FBI he would be charged with the lesser count, which were mail fraud, extortion under color of law, and conspiracy to do either one of the crimes.

A day before the trial, late in the afternoon, he was notified by his attorney that there had been some changes on the wording on the document that he had agreed to. Well, my husband disagreed because of what they had agreed was stated on the document,and the FBI so diligently said, than we have no deal. It is such a travesty, that the FBI can do that, when the agreement was that if he would cooperate with them, they would help him. After they got whatever they needed their offer was no longer available to him.

To what means do prosecuters go to to get what they want? As a housewife my observant view of prosecutors is who is should be on trial? Who can we trust,when our very own constitution defines liberty and justice for all. Prosecuters have the upper hand in intimidating witnesses and abusing their power. Where is our constitution and civil rights against prosecutors?

Posted by: clarisa vasquez at July 4, 2005 11:09 AM

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