Daily Archives: February 16, 2007

DOJ Throws in the Towel on Nigerian Barge Case

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The Chronicle’s Kristen Hays reports on the news that was bubbling through the Houston legal community on Thursday afternoon — the Department of Justice has decided not to mount an appeal to the U.S. Supreme Court of the Fifth Circuit Court of Appeals’ decision vacating the convictions (see also here) of the four Merrill Lynch executives in the Enron-related travesty known as the Nigerian Barge case.

Although expected, the DOJ’s decision in the Nigerian Barge case reverberates through several other pending Enron-related cases.

The DOJ can retry three of the four former Merrill Lynch executives, but that would be petty by even the DOJ’s standards given the eviscerated nature of the original charges and the fact that each of the defendants has already spent a year of their lives in prison based on a prosecution that was based more on resentment than on true criminal conduct.

The Fifth Circuit’s now final decision in the barge case casts doubt on a substantial number of the charges upon which former Enron CEO Jeff Skilling was convicted, and dispositively blows away over 80% of the case against former Enron Broadband executive Kevin Howard.

In addition, the re-trials of Howard’s former co-defendants from the prosecution disaster that was the first Enron Broadband case are now in various states of disarray, as is the pressured plea deal of former mid-level Enron executive, Chris Calger.

And don’t forget the mess that is the DOJ’s case against the NatWest Three.

And this is the product of what the Wall Street Journal called “a good record overall?”

Look, this carnage is what happens when government is allowed to bastardize charges. In these cases, the prosecution abused the honest services charge that is supposed to pertain to bribery or kickback cases.

In the Enron-related criminal cases, the prosecutors misapplied the honest service charge to merely questionable business transactions in order to transform juror resentment of wealthy businesspeople into 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 those winds turned toward them?

Criminalizing divorce

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mccoy_in_jail.jpgOne of the areas of practice that I have developed over the years is defending parties in contempt of court proceedings. Those are never easy cases (don’t believe me? Read about this one), but some of the ugliest occur in the family courts where judges often will hold an ex-husband in contempt of court and jail him for failure to fulfill a support obligation.
According to this NY Times article, New York is experiencing a similar problem as family court judges in a number of cases there have used this supposedly rare sanction to punish ex-husbands. Although information on the number of these debtor prison-type cases is mostly anecdotal, it’s reasonably clear that the use of the contempt sanction in financial-inability-to-pay cases is a more widespread practice than it should be. As I’ve mentioned to more than a few divorce lawyers and family law court judges over the years, it’s particularly difficult for an ex-husband to generate income to pay his support or alimony obligations while he is cooling his heels in a local jail cell.

Tracking federal cases

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federal%20court.jpgJustia, the company that developed the popular Blawgsearch engine, has just introduced another outstanding search vehicle — a website that allows the user to track federal court cases in a number of different ways, including by date, state or party name.
The website taps into a database of recently filed federal district court civil cases and starts with a list of all of the cases, which then can be broken down by State/Court/Practice/Sub-Practice. You can subscribe to an RSS feed of all of the new cases that meet these criteria, or you can do a search and subscribe to an RSS fee of the search results. For example, you could track all of the federal court cases filed against a particular company as an RSS feed, or you could subscribe to just those that are filed in Texas. Whatever the search criteria, you can track new cases with an RSS feed.
Each case has an individual page with a link to the Pacer info page (you do need a subscription to access these documents at 8 cents per page) as well as Blog, News, Finance and Web searches on the party names. Not a bad way of picking up some quick informal discovery on the parties to litigation.
Justia has inputted over 300,000 case titles since January 1, 2006 and are now updating the database daily. The website is still in beta and Justia plans to add more functionality and editorial groupings of parties. But it’s pretty darn useful already. Give it a look.