In a hearing yesterday afternoon in Houston federal court, U.S. District Judge Sim Lake continued to grapple with strong evidence that the Enron Task Force has engaged in a systematic campaign of intimidating witnesses in the upcoming trial of former Enron chairman Ken Lay, former CEO Jeff Skilling, and chief accountant Richard Causey from conferring with or testifying with the defendants and their counsel. As noted in earlier posts here, here and here, in each of the three criminal trials that the Enron Task Force has prosecuted to date — the Andersen case, the Nigerian Barge case, and the Enron Broadband case — the Task Force threatened numerous material witnesses with indictment who would have testified favorably for the defense in each case but for such intimidation. Particularly in the Andersen case and the Nigerian Barge case, the Task Force was able to use the intimidation tactics to turn weak cases into convictions by preventing the jury in each case from hearing key testimony from dozens of witnesses who would have been favorable for the defense. The Task Force has continued its witness intimidation tactics in the Lay-Skilling-Causey case, as reflected by the prosecution’s fingering of the record-setting number of 114 alleged co-conspirators in the case.

As reported in this Mary Flood article on the hearing, Judge Lake has decided to send a letter personally next Tuesday to each lawyer representing at least 38 potential witnesses in the case encouraging them to allow their clients to meet and confer with the Lay-Skilling-Causey defense team, and advising them that the Enron Task Force will not be allowed to take any action against the clients or counsel in retribution for meeting with the defendants and their counsel. Although not a grant of immunity from prosecution for any testimony that a witness would give in the case, Judge Lake’s letter will constitute a substantial impediment to any future attempt by the Task Force to prosecute a presently unindicted witness who elects to confer with the Lay-Skilling-Causey defense team. Judge Lake also indicated that he may, at the request of any witness, conduct a hearing in which the witness would be allowed to explain the circumstances of any Task Force intimidation, and he would consider additional alternatives to protect witnesses from any Task Force retribution. Finally, Judge Lake continues to hold the Lay-Skilling-Causey motion to dismiss the Task Force’s indictment against them under advisement, so he is reserviing his right to take further action in regard to the situation, particularly if even more evidence of Task Force intimidation of witnesses arises as a result of his letter writing campaign.
Although a significant development, it remains unclear whether Judge Lake’s letters will have any meaningful effect on a systemic problem that the Task Force’s approach to the Enron criminal cases has caused. Even with Judge Lake’s assurance that the Task Force will not be allowed to indict a witness who cooperates with the defense, most criminal defense attorneys are inclined to play it safe and advise their clients that, absent a grant of immunity from prosecution arising from their testimony, remaining silent and not cooperating with the defense is the only sure way of not raising the ire of the Task Force. Consequently, defense counsel for witnesses may be inclined to advise their clients to hold out from conferring with the defense until Judge Lake considers a grant of immunity from any future prosecution that might arise from their testimony in the case.
Nevertheless, the Lay-Skilling-Causey motion to dismiss has raised a highly troubling issue for Judge Lake in this case and for the criminal justice system in general — what to do when the government’s systematic approach to prosecuting related criminal cases is not to determine the truth of what happened in each case through a full evaluation of the facts as described by all material witnesses, but to promote a false version of the facts in each case by intimidating favorable defense witnesses from testifying? Although Judge Lake is clearly attempting to find a solution to the problem that is short of dismissing the Task Force’s case entirely, it may well be that a wholesale grant of immunity from prosecution to all material witnesses is the only remedy that will level the playing field and allow a full consideration of the facts during the trial from all material witnesses. That such an extreme measure is necessary to achieve a fair trial is a daunting reflection of the lengths that the government will go to criminalize business in this post-Enron era.