Former Enron Broadband executive Kevin Howard’s motion for new trial in the re-trial of the Enron Broadband criminal case is based on serious allegations of juror misconduct and ex parte communications between the trial judge and the jury during deliberations.

In its filed earlier this week, the Enron Task Force takes the expected position that the allegations of juror misconduct were “internal” and not the product of “external forces” and, thus, do not justify a new trial.

However, in response to Howard’s allegations that U.S. District Judge Vanessa Gilmore had at least two sessions in which she improperly discussed the case with jurors outside the earshot of Howard and the attorneys involved in the trial, the Task Force contends only that such communications constitute “harmless error.”

A trial judge discussing the case ex parte with jurors while the jury in a highly-publicized, related trial is delivering its verdict amidst a media firestorm is “harmless error?”

Looks to me as if Mr. Howard has a pretty good shot at reversal if that’s the best the Task Force can come up with on that issue.

Neil Coulbeck, former chief of North American financial markets for NatWestís corporate bank who provided evidence to the F.B.I. and the Justice Department about Enron-related transactions involving three former NatWest Bank colleagues, was found dead in an East London park Tuesday less than two days before the politically-charged extradition of his former colleagues to Houston to stand trial. Although the death is still under investigation, early speculation is that Coulbeck committed suicide. Previous posts on the case of the NatWest Three are here.
Earlier today, American marshals took the NatWest Three ó David Bermingham, Giles Darby and Gary Mulgrew ó into custody in London in preparation for flying them to the Houston. The Enron Task Force indicted the three over a transaction involving the sale of NatWestís stake in an Enron-related asset that prosecutors contend was structured by the former bankers to give NatWest less profit than it should have had while personally benefiting the bankers and several former Enron executives, principally former CFO Andrew Fastow. The three former bankers deny any criminal conduct and the successor to NatWest Bank ó Royal Bank of Scotland ó has not pressed either criminal or civil charges against the men.
The fate of the bankers has generated a political firestorm in the UK over the past year as British politicians and business executives have criticized their extraditon to the United States as the product of overzealous American prosecution of business interests after the bursting of the late 1990’s stock market bubble. The political controversy centers on a treaty between the US and UK that was signed soon after the 9/11 attacks to facilitate the extradition of suspected terrorists. The treaty permits either country to extradite citizens of the other on more limited evidence than previously required, and US is now using the treaty to facilitate prosecutions against business interests rather than just suspected terrorists despite the fact that the US has not ratified the treaty (the UK ratified it 2004). On Tuesday, the House of Lords passed a resolution to overturn the treaty and the treaty was debated Wednesday in Parliament.
Interestingly, during the Wednesday debate in Parliament, British Prime Minister Tony Blair ó who supports the extradition ó stated that the three bankers would probably to be granted bail in Houston. Given the strict conditions for release on bail that has been required in previous Enron-related prosecutions, I wonder if Mr. Blair knows something that we don’t?