As noted in earlier posts here and here, the longstanding suspicions that the Enron Task Force has been engaging in witness tampering in the Enron-related criminal cases is now in full public view. This Mary Flood article reports on the filing of the redacted version of Ken Lay, Jeff Skilling and Richard Causey’s motion to dismiss the Task Force’s indictment against them on grounds of prosecutorial misconduct and, according to Ms. Flood’s article, the motion is a damning indictment of the Task Force’s handling of the criminal investigation of Enron. Go to this link to download a copy of the Lay-Skilling-Causey motion, and here is a Washington Post article on the motion.
The motion and accompanying affidavit from law professor Michael Tigar are stunning in many ways. For example, counsel for the defendants note that they have sought to confer with over 100 witnesses and only four have agreed to do so after the Task Force earlier took the extraordinary step of naming 114 unindicted co-conspirators in the case. Mr. Tigar’s affidavit states that “this level of silence is not normal” from witnesses and that “I have never seen defendants in a major public trial, especially a white-collar trial, so completely ostracized by witnesses with pertinent information.” Mr. Tigar concludes:

“. . . I have seen prosecutorial misconduct and litigated about it. However, in all my years handling criminal cases, and in all my experience teaching and working with other lawyers, I have never seen all of these unfair pressures brought to bear on the adversary system in a single case.”

Similarly, the motion makes reference to a potentially explosive email from a Task Force prosecutor to a defense attorney for a cooperating government witness in one of the Enron cases. Although it is a bit difficult to surmise what’s in the email because it has been redacted from the version of the motion that has been filed publicly, it appears from the motion that the e-mail told the lawyer for the cooperating witness to direct his co-counsel for the cooperating witness to stop talking to Mr. Skilling’s lawyer or that he should “get rid” of him. The motion does not name the identity of the Task Force member who made that threat, but I have my suspicions.
Unfortunately, the public exposure of the Enron Task Force’s misconduct comes too late to help the defendants in the Nigerian Barge case, whose defense was also undermined by the Task Force’s designation of dozens of key defense witnesses as unindicted co-conspirators in the case. Here’s hoping that U.S. District Judge Sim Lake puts a halt to this transparent abuse of governmental power and — at very least — provides each of the co-conspirators named in the Lay-Skilling-Causey case immunity from prosecution for their testimony in that case. It’s about time that the truth about Enron be told, not some piecemeal prosecution version based on the dubious statements of witnesses who have been bludgeoned into plea bargains.
Meanwhile, one notable critic of the government’s criminalization of Enron wonders whether the government will take the same approach with regard to its own actions in the debacle of New Orleans?