As anticipated in this earlier post, U.S. District Judge Sim Lake concluded in a hearing yesterday that the defense team of former key Enron executives Ken Lay, Jeff Skilling and Richard Causey had not established in his mind that prosecutorial misconduct caused several clients of two Houston criminal defense attorneys not to assist the defense in preparation for the upcoming trial of the Enron Task Force’s legacy case of its four year Enron investigation.
Judge Lake’s ruling on the witness intimidation evidence was not surprising, as the Lay-Skilling-Causey defense team has struggled with the reality that no witness under the threat of retaliation from the Task Force is going to testify — or allow their attorney to testify — about that threat. However, compelling evidence of the Task Force’s intimidation of witnesses in Enron-related prosecuctions still exists (see also here), and the larger issue in the trial — the Task Force’s unprecedented fingering of over 100 unindicted co-conspirators — remains unresolved and clearly troubling to Judge Lake.
In addition to the chilling effect on exculpatory testimony from potential defense witnesses who have been fingered as unindicted co-conspirators, the Task Force intends to rely heavily during the Lay-Skilling-Causy trial on hearsay testimony from prosecution witnesses who have copped pleas about alleged statements made by various of those alleged co-conspirators. The defense is attempting to limit the prosecution’s use of such hearsay testimony, and Judge Lake ordered the parties yesterday to brief him as he wrestles with the issue of whether to allow any such testimony — and, if so, how much — to come into evidence during the trial.
Finally, during the hearing yesterday, comments of the Task Force prosecutors and the other attorneys involved in the hearing indicated that the Task Force is preparing to have the grand jury investigating Enron issue another indictment in the near future against other former Enron executives who have not yet been indicted on any charges. The timing of the new indictments is transparent, given that the Task Force knows that publicity about more Enron executives being arrested will be beneficial for the jury pool to hear immediately before the beginning of the upcoming Lay-Skilling-Causey trial. You might recall that the Task Force pulled a similar stunt by publicly announcing the plea bargain of former Enron North America executive Chris Calger on the day that the jury in the trial of the Enron Broadband case began deliberations. The subject of the upcoming indictments remains unclear, but I suspect that it probably relates to the transaction involved in the Calger plea bargain (related post here).