Following on this post from earlier this summer, U.S. District Judge Sim Lake gave his strongest indication to date that he is prepared to take action against the Enron Task Force’s strategy to deny former Enron chairman Ken Lay, former CEO Jeff Skilling and former chief accountant Richard Causey as many defense witnesses as possible in their upcoming corporate and securities fraud trial.
After attorneys for Messrs. Lay and Skilling filed another motion under seal with Judge Lake alleging prosecutorial misconduct in the Task Force threatening potential defense witnesses, Judge Lake on Thursday ordered another hearing next week after stating on the record that he believed the defense assertions that many witnesses had at least a perceived threat from the Task Force. Although careful to state that he had not yet concluded that prosecutorial misconduct had taken place, Judge Lake directed defense lawyers to provide to the Task Force a list of witnesses who have declined to talk to the Lay-Skilling defense team. The Task Force has named 114 unindicted co-conspirators in its legacy case against Messrs. Lay, Skilling and Causey, which is a far larger number of co-conspirators than has ever been alleged in any other federal white collar criminal case.

At next week’s hearing, Judge Lake indicated that he expected the parties come up with reasonable procedures to give defense lawyers “a better right of access to these people” even if it required bringing the witnesses to his courtroom to meet with the defense so that he could assure them that he will not allow the Task Force to retaliate against them for talking to the defense team. Judge Lake indicated that he would even make rooms available in the federal courthouse for the defense to interview the witnesses.
Although the latest Lay-Skilling motion remains under seal and is not available for public review, the motion appears to be addressing two dubious tactics of the Task Force during its investigation of Enron-related matters — i.e., threatening potential defense witnesses with indictment if they testify in favor of Enron-related defendants and bludgeoning former Enron employees to enter into plea arrangements under which they would provide favorable but false testimony in prosecutions of other Enron-related defendants. To make matters even more complicated, Judge Lake’s harsh sentence handed down in the sad case of Jamie Olis last year has had the understandable effect of increasing witnesses’ concerns over the impact of the Task Force carrying through on its threats to indict.
Those tactics have come to light recently as a result of revelations in other Enron-related criminal cases. First, several key defense witnesses in the Nigerian Barge case declined to testify on Fifth Amendment grounds because the Task Force had fingered them as targets of the Enron criminal investigation. Then, as noted in this earlier post, former Enron Broadband engineer Lawrence Ciscon dramatically testified during the Enron Broadband trial that Enron Task Force prosecutors had repeatedly threatened him and had fingered him as a target of an indictment in attempting to dissuade him from testifying on behalf of the five Enron Broadband defendants. That dramatic testimony came on the heels of the Task Force eliciting false testimony from former Enron Broadband co-CEO Ken Rice during that trial, which was then followed by the Task Force threatening another witness in connection with her testimony regarding Rice’s false testimony.
As noted in this post, the Enron Task Force’s public relations campaign in regard to its Enron-related prosecutions has been quite effective. However, in actually proving its allegations in court, the Task Force has been far less successful. Now, after painting Messrs. Lay and Skilling as pariahs in the court of public opinion, the Task Force prosecutors do not believe that they can prevail in the true prosecution of these men without attempting to prevent the defense from questioning key prosecution witnesses under oath and threatening potential defense witnesses. Last week, in another case involving governmental misconduct, U.S. District Judge Lynn Hughes observed the following:

“[The government’s action was] a perverse combination of personal and political hostility. The personal part was political, too, since it was derived from the bureaucrats’ and their like-thinking co-conspirators’ appreciation of a successful entrepreneur as the personification of what they opposed in America.”

Similarly, the conduct of the Enron Task Force is a stark reminder of how unconstrained prosecutors lacking prosecutorial discretion can ruin businesses, reputations and lives. Thus, as noted earlier, the Justice Department is not about “justice” at all, but about fulfilling pre-conceived political notions of alleged wrongdoing regardless of whether those notions comport with the truth. Is this really the way that we want our criminal justice system administered?