Sorry about the problems accessing the blog over the past couple of days. The blogís host server went down, so everything had to be migrated to a new server. It looks as if things are working reasonably well now.
Be sure to check out Fridayís post on the developments in the Enron-related Nigerian Barge case. What a strange, wild ride it has been.
Thanks for the patience and for reading HCT.
Well, the Department of Justice finally did the right thing and dismissed the remaining criminal charges against former Merrill Lynch banker, Dan Bayly, in connection with the shameful Enron-related Nigerian Barge prosecution.
Even in the heavily-littered landscape of failed Enron-related prosecutions, the Nigerian Barge prosecution stood out for its sheer brazen nature. As noted in this post from over five years ago (!), the Nigerian Barge prosecution was baseless from the start and, as later developments revealed, trumped-up to boot.
After prosecuting Arthur Andersen out of business in the intensely anti-business post-Enron climate of Houston in 2004, the Enron Task Force threatened to do the same to Merrill Lynch unless the firm served up some sacrificial lambs, which it did by offering Mr. Bayly, Robert Furst, James Brown and William Fuhs.
Through a deferred prosecution agreement with Merrill, the Task Force then proceeded to hamstring the Merrill defendants’ defense by limiting access to other Merrill Lynch executives who were involved in the barge transaction. To make matters worse, the Task Force then intimidated other potentially exculpatory witnesses by threatening to indict them if they cooperated with the Merrill defendants’ defense.
Thus, after bludgeoning a couple of plea deals from former key witnesses Ben Glisan and Michael Kopper, the Task Force proceeded to put on a paper-thin case against the defendants, which was good enough to obtain convictions.
Of course, most of the convictions were vacated on appeal (and in Fuhs’ case, thrown out completely), but not before each of the Merrill defendants had served over a year in prison and their families had incurred the incalculable human cost of these misguided prosecutions.
Incredibly, over the past couple of years, the Department of Justice (the Enron Task Force has, mercifully, been disbanded) actually has been threatening to pursue a re-trial of the Merrill defendants. Accordingly, the dismissal of the remaining charges against Mr. Bayly was good news. A similar dismissal of charges against his remaining co-defendants — Messrs. Furst and Brown — would certainly follow, right?
Apparently not, at least for the time being. Inexplicably, the DOJ announced yesterday that it is continuing to pursue charges against Mr. Furst.
So, Mr. Furst unloaded on the DOJ yesterday with the filing of this motion to dismiss on the grounds of pervasive and egregious prosecutorial misconduct. You can review the motion here, but if you go ahead and download it, then you can review a version of the motion that is bookmarked in Adobe Acrobat to facilitate ease of review. Inasmuch as the 45 page motion includes about 350 pages of exhibits, bookmarks are helpful.
The summary of the motion gets right to the shocking point:
The American criminal justice system is built upon the principle that the government’s interest is not that it shall win a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88 (1935).
The Enron Task Force (the “ETF”) team of prosecutors and investigators formed in 2002 to address the public demand for individual accountability in the aftermath of Enron’s collapse investigated, indicted, and prosecuted Defendant Robert Furst and his co-defendants with the goal to win at all costs.
And the ETF “won.” Mr. Furst spent almost a year in prison before his conviction was overturned on appeal.But to secure victory, the ETF engaged in a campaign of misconduct which violated Mr. Furst”s constitutional rights to due process and a fair trial.
This misconduct was necessary because the case the ETF indicted and hoped to prosecute, which would involve a sordid tale of a well-organized conspiracy to defraud Enron and its shareholders, was not supported by the facts.
The ETF could not prove that Enron or its shareholders lost any money in the barge transaction, because they did not. The form and mechanics of the transaction were thoroughly vetted through hundreds of hours of negotiation by dozens of highly-competent attorneys. Witnesses interviewed by the ETF undercut its theory of the case.
In short, the barge transaction had all the markings of a legitimate business transaction, because it was.
But legitimate business transactions do not generate convictions, and the ETF needed convictions. So, in order to ensure victory, the ETF withheld volumes of exculpatory, case-dispositive evidence which nullified its theory of criminal liability; manipulated and misstated exculpatory testimony in pretrial disclosures to make it appear inculpatory; silenced witnesses by indiscriminately designating nearly all material witnesses as unindicted co-conspirators; and sponsored inculpatory testimony that it knew was false.
The ETF’s conduct did not end with the return of the verdict.
After trial, but before sentencing, the ETF received additional case-dispositive, exculpatory evidence from one of the key witnesses in the case. This evidence further nullified the ETF’s theory of criminal liability, and exculpated Mr. Furst.
Rather than disclosing this evidence to the Court, the ETF instead withheld the evidence and brazenly asked this Court to enhance Mr. Furst’s sentence for conduct which was negated by this and other evidence in the ETF’s possession.
This misconduct eliminates all faith in the integrity of the jury’s verdict and warrants dismissal of the Indictment. . . .
The mess that is the Nigerian Barge prosecution is a quintessential example of what happens when government is given the leeway to bastardize charges to criminalize a merely questionable business transaction and then appeal to juror resentment against wealthy businesspeople to procure politically popular convictions.
The damage to the defendants, their careers and their families that this abuse of power has caused is bad enough.
But the carnage to justice and respect for the rule of law is even more ominous. Does anyone really think that they could stand upright in the winds of such abusive governmental power if that gale turned toward them?
The remaining charges against Messrs. Furst and Brown should be dismissed. Not only for their protection, but for ours, too.
After enduring another holiday season of mostly bad college football bowl games, Iíve been thinking about Houstonís own Texas Bowl.
Frankly, why bother with it?
As this recent University of Missouri release notes, Mizzou not only got its collective ass kicked by a feisty Navy team in the game, but the university also lost money in participating in the game even after cutting corners.
That Missouri lost money is not surprising given that the Texas Bowlís payout is among the most paltry of any of college footballís post-season bowl games.
The Texas Bowl pays out a total of $1.250 million, which puts the bowl game in the bottom third among the 34 bowl games in terms of payout (ìTier 3î in bowl genre). That compares to the $2.2 million and $3 million payouts that Tier 2 bowls such as the Alamo and Cotton Bowls pay to its participants and the $17 million that each of the BCS Bowl games pays to its participants.
Due to its limited payout, the Texas Bowl has no negotiating leverage in attempting to persuade conferences to send one of their better teams. Accordingly, they usually get the sixth or seventh best team from one of the major conferences.
Houstonís bowl game has always struggled for funding. Even back during the days of the Astro-Bluebonnet Bowl in the Astrodome, the folks running the bowl game have never been able to snare the big-fish title sponsor necessary to elevate the bowlís stature. The Houston Open golf tournament found itself in a similar position for years until it persuaded Shell to become the tournamentís title sponsor. Despite a few blips, the Shell Houston Open has become a solid second tier tournament on the PGA Tour schedule.
Whatís too bad about the Texas Bowlís problems is that it really could be a good bowl experience, at least on par with San Antonioís Alamo Bowl or Dallasí Cotton Bowl.
My old friend Dan McCarney, who currently is one of Urban Meyerís top assistants at Florida, coached Iowa State in the Texas Bowl several years ago. He said that the Reliant Park facilities were as good as any bowl game that he had ever seen ñ the teams used one locker room the entire week for their practices and the game. The teams loved not having to practice at a different site and then move to the stadium on gameday.
Moreover, the Houston business community routinely buys large blocks of tickets to the game (even if most of those tickets go unused). Finally, with the Johnson Space Center, the Medical Center, the Museum District, the Theater District and many fine restaurants and clubs, Houston certainly fits the bill of a place that would be a fun destination for a bowl game.
But whatís the purpose of promoting a bowl game that has mostly second-rate participants who view the game as a booby prize?
If the Texas Bowl canít find a title sponsor that would elevate the game at least to the second tier of bowl games, then itís time to pack it in.
There is nothing wrong with declining to waste time on being an afterthought.
Update: Kevin Whited passes along this Chronicle article from several years ago on Houstonís bowl history.
O.K., so the Cowboys are doing alright so far in this seasonís NFL playoffs and the Texans, as usual, are in their annual ìwait until next seasonî mode.
But there are other areas in which Houston simply throttles Dallas, hands down.
For example, in connection with its mandate to promote Houston, the Greater Houston Convention and Visitorís Bureau released the video below late last year. Featuring the edgy local band The TonTons, the video does a very nice job of providing an attractive introduction to Houston:
But I didnít realize just how good the GHCVBís video was until I came across the abominable video below that the City of Dallas recently produced for the Professional Convention Management Association:
Key tip to Dallas ñ you are trying way too hard.
From the Johnny Cash Show of May 1, 1969, Bob Dylan and Johnny Cash.
(Previous weekly reviews for this season are here).
Unless you have been living under a rock, you already know that the Horns (13-1) lost the national championship game to Alabama (14-0) after losing star QB Colt McCoy to what looked like a severe pinched nerve in the first five minutes of the game.
Itís really a shame McCoy wasnít able to play because, as I thought going into the game, the Tide looked as if it could have been had. The Horns could only parley two turnovers in Bamaís first two possessions into six points and, frankly, neither backup QB Garrett Gilbert nor the Hornsí coaching staff was ready when Gilbert was called upon to play in the first half (Gilbert had on thrown .
As a result, the second quarter was a disaster for the Horns, as Bama used short fields to ring up 17 points and then punctuated its dominance with a gift defensive TD off of an ill-advised shovel pass on the last play of the first half.
The Horns staff and Gilbert re-grouped at halftime and gamely made a game of it in the second half, pulling to within three with six minutes left to go using a well-designed short passing offense that did not give Bamaís ubiquitous blitz packages time to confuse and pummel Gilbert.
But forced to take risks late in the game to get back in scoring position, the Horns coughed up the ball a couple of times in the closing minutes to give Bama a two cheap, but clinching, TDís.
The disappointing finish detracted from an another otherwise successful season for the Horns. Moreover, the future is bright. Although Texas loses such stars as QB McCoy, WR Jordan Shipley and Safety Earl Thomas, Garrett and several other young Longhorns look to be ready to step up so that there will not be a big drop-off in performance next season. In particular, the defense this season became the dominant unit that has been the missing element of consistent national championship contention during Mack Brownís tenure.
However, not all is well in the Longhorn Nation. Stated simply, this season has established with certainty that Texas has lost the capacity to pound the rock.
With increasing reliance on the spread offense, the Horns no long have an effective power running game that they can turn to when defenses put 7 and 8 players in coverage and allow their safeties to forget about run support. That deficiency was painfully apparent in the Hornsí three biggest games this season, this one, the OU game, and the Big 12 Championship game that they should have lost to Nebraska.
There are many reasons for the demise of UTís rushing attack, but the primary cause has been a steep decline in the performance of the offensive line. Although Texas routinely has its pick of the litter of Texas high school football prospects, offensive linemen are notoriously difficult to project from high school to big-time college football. Thus, sound development in that particular area is essential to a well-balanced offensive attack. For whatever reason, it appears that UTís coaching staff is having problems in that key development area.
With the better defenses making it increasingly difficult for spread offenses to throw the ball down the field, Coach Brown is going to have to figure out a way to re-establish a power rushing game or the Horns are at high risk of falling off from the top tier of big-time college football (see LSU). Itís going to be difficult at first and there are going to be some hiccups along the way. But the chances of the Horns returning to the BCS National Championship game in the near future are far higher with a balanced offense than the current version.
The Daily Show‘s crack British correspondent, John Oliver, tells Jimmy Fallon about his first visit to Las Vegas and his first time shooting a rifle. And below that is an hilarious and surprisingly insightful recent report by Oliver from The Daily Show. Enjoy.
| The Daily Show With Jon Stewart | Mon – Thurs 11p / 10c | |||
| Even Better Than the Real Thing | ||||
|
||||
The Reason.tv video below puts the Transportation Security Administration’s silly security theater policies in perspective, while Bruce Schneier provides another excellent post on the kind of security (including some security theater) that makes much more sense.
Is anyone in Washington, D.C. even listening?
This interesting Lawrence Altman/NY Times article examines the theory that that an undiagnosed melanoma contributed to the death of President Franklin Delano Roosevent in 1945.
Of course, regular readers of this blog know that another killer disease — the dire implications of which were not well-known in 1945 — was probably the main cause of FDR’s death.
But despite the historical curiosity, the most important point to glean from FDR’s demise is the importance of continued investment in clinical and scientific research.
We sometimes forget that it was the generation of doctors and researchers who came of age after World War II who embraced the optimistic view of therapeutic intervention in the practice of medicine, which was a fundamental change from the sense of therapeutic powerlessness that was taught to these men by their pre-WWII professors. In short, it has not been that long since medical science has understood that it could cure disease and prolong life.
For example, if FDR’s doctors had known in 1945 what specialists in hypertension discovered in the two following decades, then those doctors would never have allowed FDR to be subjected to the stress of the Yalta Conference that doomed Eastern Europe to almost 50 years of totalitarianism and economic deprivation.
Stated simply, earlier discovery of the research into the implications of hypertension could well have changed the course of human history.
In fact, we all tend to under-appreciate the advancements in medicine since World War II. For male babies born in the U.S. in 1960, the life expectancy was about 66.5 years and for female babies a tad over 73 years. By 2005, the live expectancies had increased to over 75 and 80 years respectively. Although medical advances don’t account for all of those gains, newly-discovered drugs and medical devices — as well as enhanced understanding of disease — have had an enormous impact on improving the quality of life of most Americans.
Thus, as Congress considers reforming the U.S. health care finance system, it is important for citizens to understand that American medical care and research remains the hope of the world. The current health care finance system has generated enormous investment in that medical innovation, which has been a crucial and treasured export of America to the rest of the world.
Let’s think hard before radically changing a system that generated the investment that produced those benefits for us and the rest of the world.