The Houston Chronicle leads with a story today that the long expected indictment of former Enron CEO Jeff Skilling this week does not mean that the government will have an easy time convicting Mr. Skilling of a crime. The same thought was expressed last week in an earlier post on Mr. Skilling.
Interestingly, although numerous former Enron executives have been indicted, the Enron Task Force has yet to take one of the cases to trial. Indeed, the only Enron-related prosecution to date has been the conviction of corporate defendant Arthur Andersen, which by no means was an easy (or clear cut) victory for the government.
Virtually every Enron-related indictment to date has contained so many alleged offenses that a conviction would lead to a prison sentence of draconian length. Accordingly, rather than risk an extremely long prison sentence after a trial in an environment that is extremely hostile to anyone related to Enron, most of the Enron defendants are electing to cop plea bargains, such as the plea bargain that ex-Enron CFO Andrew Fastow agreed to last month.
The government’s strategy in the Enron criminal cases is at least mildly troubling. The government indicts an individual with so many counts of alleged crimes that the defendant is confronted with the choice of risking trial and the potential of virtual life imprisonment or striking a plea bargain that limits their jail time, but waives valid defenses to the alleged wrongdoing. The government’s job is to indict and convict wrongdoers, not to sledgehammer citizens into copping pleas. I am hopeful that the District Judges involved in the Enron criminal cases (and there are several very good Southern District of Texas Judges involved in these cases) dismiss criminal counts that the government has merely added for leverage purposes and allows the government to proceed to trial only on those counts where there is sufficient evidence that a fact finder could decide that a crime occurred.