Is it just me or does anyone else find it odd that this USA Today article is doing a better job of covering the prosecutorial abuse that is taking place in the Enron-related criminal cases than supposedly more thorough national newspapers such as The New York Times and The Wall Street Journal?
Following up on this post from over the weekend, the USA Today article notes the utterly absurd and abusive tactic of the Task Force in fingering about 100 unindicted co-conspirators in its legacy case against former key Enron executives Ken Lay, Jeff Skilling and Richard Causey. The transparent purpose of the tactic is twofold:
First, to suppress exculpatory testimony in favor of the defendants from the unindicted co-conspirators, all or whom have declined to testify under their Fifth Amendment privilege out of fear of being indicted; and
Second, to have the testimony of the Task Force’s own witnesses about the alleged hearsay statements of the unindicted co-conspirators introduced into evidence as an exception to the hearsay rule. Not surprisingly, most of the Task Force’s witnesses are “cooperating witnesses” — i.e., former Enron executives who attempting to reduce their prison time by testifying against the defendants pursuant to plea bargains with the Task Force.
Of this tactic, the USA Today article notes the comments of Stanley Twardy, a former U.S. attorney who is now a defense lawyer in Connecticut, that “‘extremely rare’ for a case to have as many unindicted co-conspirators as [the Lay-Skilling-Causey] case does. It’s unusual to have them at all outside of drug and Mafia cases.”
As noted in this other post from over the weekend, the Task Force’s tactic has already resulted in a grave injustice in the Nigerian Barge case, where four Merrill Lynch executives are now serving prison terms because large amounts of exculpatory testimony for the defendants never came into evidence at trial. To avoid the same injustice from occurring in the Lay-Skilling-Causey trial, Judge Sim Lake should give the Task Force a deadline in which to indict any of the unindicted co-conspirators against whom the Task Force has a viable case, and then grant immunity from prosecution for all of the remaining unindicted co-conspirators. Only with such key testimony will the jury be able to sort out the truth of the Task Force’s allegations that the defendants engaged in criminal wrongdoing at Enron. Without such testimony, the jury will be deliberating on nothing more than the Task Force’s fictional screenplay of the defendants’ role in Enron’s demise.
Tom, Great web site — I enjoy it tremendously. I am curious about the following sentence: “As noted in this other post from over the weekend, the Task Force’s tactic has already resulted in a grave injustice in the Nigerian Barge case, where four Merrill Lynch executives are now serving prison terms because large amounts of exculpatory testimony for the defendants never came into evidence at trial.” To me, this makes it seem that if the evidence had been permitted, they wouldn’t be in jail. This is not a logical preocession of thought as a fait accompli. While it may well be the case that the jury who decided their respective fates of the four gentlemen that given more evidence they may very well would’ve changed their evidence. But, to present it in such a declarative way is assuming soomething you shouldn’t. By the way, who is at fault in Nigerian barge deal, if any? Thanks and keep up the good work.
John, thank you for the kind words and for reading HCT.
There is a large amount of testimony and evidence that should have come into evidence during the Barge trial that, in my view, would have dramatically changed the outcome. I will use the oral guaranty issue as but one such example.
Several Enron and Merrill executives who participated in the conference call with Fastow and Bayly would have testified that no oral guaranty was provided by Fastow during the call. Moreover, Fastow advised the FBI and the Justice Department that he provided no such guaranty. Inasmuch as the Task Force relied totally on hearsay testimony of cooperating witnesses who had copped pleas and who had not participated in the call, I believe that a full hearing of the testimony of the participants involved would have generated reasonable doubt in the jurors minds that the oral guaranty that was at the heart of the Task Force’s case was ever made.
There are other examples of evidence that would have made a difference, such as the total mischaracterization of the transaction by the Task Force. And there is no doubt that the decision of Mr. Bayly not to testify in his own defense was a crucial mistake. However, if all relevant testimony had come in during trial, the trial should have never have come to that.
Tom
You say, “Fastow advised the FBI and the Justice Department that he provided no such guaranty.” If true, why didn’t the defense lawyers call Fastow as a witness? Why didn’t such happen?
When someone makes this kind of argument, I always recall what the Ninth Circuit said about several St. Louis lawyers who were defending the “God Father” case in Los Angeles in the 1970s.
“Defendants’ counsel were not young lawyers learning at their clients’ expense, or, as appointed counsel, at government expense, how to try cases and argue appeals. Some of them are among the most experienced, able and astute lawyers who appear before us. The trial judge could not believe that they over-looked the point that they now belatedly seek to raise and we have the same doubts about it that he had. We think that the point that defendants now make is not now available to them. What counsel did is the kind of tactical decision that counsel can make without consulting with or getting the approval of their clients. See Kuhl v. United States, 9 Cir., in banc, 1966, 370 F.2d 20, 26-27.”
Polizzi v. United States, 550 F.2d 1133 (9th Cir. 04/07/1976)
Second, why do you always omit that all the four Merrill Lynch executives forgot to testify. Even if others could have testified, they could have also testified.
EBW and Morris Shenker were right. A WCCC in which the defendant doesn’t testify is a slow guilty plea.
The correct question to ask would seem to be whether anyone was at fault in the Nigerian barges deal. By asking “who is at fault” presumes too much, and creates a faulty starting point for clear thinking about the transaction itself, and about how we got to the point of having 5 possibly blameless men in jail.
JDL, you seem to view the criminal justice system as some sort of contest in which it is fair for the government to game the system by making it effectively impossible for the defendants to present exculpatory evidence and that it’s the fault of the coaches on the defense team if they don’t find a way to get around that tactic. I simply do not view that as being the purpose of the system nor the way in which citizens should allow their government to attempt to put other citizens in prison.
Having said that, and noting your view toward the Merrill defendants’ defense counsel, the prosecutorial misconduct of the Task Force prosecutors is a central issue in the Merrill defendants’ appeal of their convictions.
By the way, you are incorrect that all the Merrill defendants did not testify. Bayly did not testify for sure, but Fuhs certainly did testify. I don’t recall whether not sure about Brown and Furst testified, but I’ll check and let you know.
Tom’s view is actually firmly based in the U.S. Constitution. See Berger v. United States, 295 U.S. 78, 88 (1935), where the U.S. Supreme Court stated that the governmentís interest in a criminal prosecution ìis not that it shall win a case, but that justice shall be doneî and that, therefore, it is the prosecutorís duty ìto refrain from improper methods calculated to produce a wrongful conviction [even] as it is to use every legitimate means to bring about a just one.î
And about the “slow guilty plea,” it’s also constitutional law that the exercise of one’s rights under the Fifth Amendment is not to be considered evidence of guilt.
Tom and Preston,
Let me repeat, first, the question both of you avoid and that is, Why wasn’t Fastow called as a witness by the defense?
This has nothing to do with the privilege against self incrimination.
Second, I know that Bayly did not testify.
I know one defendant testified and was acquitted. “the jury acquitted a former in-house Enron accountant, Sheila Kahanek, who testified she consistently opposed a verbal promise that the government contended made the deal a loan – that Enron would resell or buy back Merrill’s interest within six months”
I don’t believe the other defendants testified.
Third, Preston especially confuses the failure to produce evidence and the privilege against self incrimination. The jurors could draw inferences against the Defendants from their failure to put up a defense and present evidence.
As regards the importance of a defendant testifying, I believe that the defendants did testify in the so-called “broadband” trial.
Next to last: The privilege against self incrimination means nothing to me as a private citizen. We should conclude that a defendant is guilty by reason of his or her failure to testify. This is, in fact, my principal criticism of Tom’s position viz Enron. It doesn’t seem to me that a blog should celebrate guilty defendants who may be able to avoid conviction because they cannot be forced to testify against themselves.
This is not to say that I don’t believe in the privilege. I very strongly believe that the privilege is important to the defendant, for it truly aids the innocent by giving one an adequate opportunity to prepare to speak. However, once a case is called for trial, a defendant who fails to testify should be seen as guilty by anyone outside the courtroom.
The principle question to me as a private citizen is whether the defendants are guilty and,if so, whether the government is fairly and effectively prosecuting.
Having almost 30 years of experience in criminal cases, I can say that the Enron defendants are being treated more fairly than any other defendants in the federal system.
If both of you believe that the system is so unfair then where have your voices been about Burger, Rehnquist, Scalia, Thomas, and now Alito?
In fact, Tom frequently posts about “strict” construction. Rest assured, there is nothing in the constitution that says “target letters.”
Never do you protest about these judges. We didn’t get here, overnight.
And, as Tom has agreed before, its not the “prosecution” that is responsible for the style of the Enron task force, its President Bush and the Attorney General.
In sum, my point of departure with each of you is, first, Why are we only hearing your voices now? And, second, why don’t we hear your voices on behalf of defendants much more in need of help and assistance than Lay and Skilling?
John, Fastow wasn’t called by the defense because they thought that the government had not made their case and that calling Fastow was an unnecessary risk. Obviously, that was a miscalculation. However, such a mistake does not justify an unjust conviction that is based on less than all available evidence regarding the alleged criminal conduct.
Kahanek, Fuhs, and Boyle testified during the trial. Bayly, Brown and Furst did not. Boyle’s testimony — which reportedly came across as poorly-prepared and disjointed — was apparently damaging to all of the defendants.
We simply disagree as to whether there should be a presumption of guilt toward a defendant who declines to testify on the basis of their Fifth Amendment privilege. Why should an innocent defendant be presumed guilty because they elect not to testify because they are not a good witness? Similarly, why should an innocent defendant who is distraught emotionally from the trauma of an unjust trial be presumed guilty because they elect not to prejudice their case by being a poor witness?
Your suggestion that the Enron defendants are being treated more fairly than other defendants in the criminal justice system rings hollow. The Task Force’s fingering of unindicted co-conspirators to deny defendants exculpatory testimony — and use of testimony from cooperating witnesses about hearsay statements allegedly made by those those unindicted co-conspirators — is unprecedented in scope. These tactics are seriously undermining the Enron defendants ability to receive a fair trial.
To the extent that your point is that the Supreme Court Justices that you identify are partially responsible for the increased criminalization of ordinary business transactions in American society, I would agree with you, although my sense is that Congress is even more responsible.
As for only hearing my voice now, I’ve only maintained this weblog from about two years. However, I have been consistent in decrying the increased criminalization of merely questionable business conduct throughout that time, primarily because it relevant to the subject matter of this blog. I occasionally voice an opinion regarding other injustices in the criminal justice system (see the recent post on the Texas death penalty case). But rather than expand the scope of this blog, I prefer to voice my support for the less fortunate by doing pro bono work in the juvenile justice system in my home county courts. It’s a rewarding experience.
John, please check out Slochower v. Board of Education, 350 U.S. 551, 557 (1956), in which the Supreme Court condemned ìthe practice of imputing sinister meaningî to the exercise of the Fifth Amendment right to refuse to testify, recognizing that ìa witness may have reasonable fear of prosecution [and conviction] and yet be innocent of any wrongdoing.î That’s the law a private citizen who’s been called to jury duty is suppose to apply. And there’s good reason for that, as is revealed by the demonization of Enron and its former executives and the acceptance by the public at large of the Task Force’s well-choreographed but “fictional screenplay.”
You may be right that there are many to blame for this abomination, but that doesn’t change the fact that it’s an abomination.
Tom and Preston,
Tom says, “John, Fastow wasn’t called by the defense because they thought that the government had not made their case and that calling Fastow was an unnecessary risk. Obviously, that was a miscalculation. However, such a mistake does not justify an unjust conviction that is based on less than all available evidence regarding the alleged criminal conduct.”
Tom, you cannot have it both ways. You started saying that Fastow’s tesitmony was entirely exculpatory. Then you do a 180 and say his testimony was a “risk.” If he was a risk, then you earlier statement is less than accurate.
Second, “target letters” are used in all kinds of conspiracy cases, not just WCCCs. I earlier posted a 4th Circuit opinion on the practice in, as I recall, a drug case. Lay and Skilling are not the first defendants to face the “problem.” That is my point of departure with you.
Second, for what it is worth, I have tried to point out what I see is the weakness in your argument. Target letters appear bona fide due to the incredible breadth of the federal laws of conspiracy, especially when coupled with wilful blindness. These principles are why these letters work. The threat of prosecution is too real.
It is because of this that I favor the defense approach used in the Healthsouth case, which targeted the government’s failure to prosecute. It seems to me that under Brady and Kyles (which permits an attack on the good faith and negligence of the government’s investigation) that proof that 100 plus people haven’t been charged makes a prima facie case of a both a lack of good faith and negligence during the investigation.
As for Preston finding a 1954 Supreme Court case, may I please suggest that he re-read my comments. I said that it was fair to draw inferences, after a defendant refuses to testify at trial. The purpose of a trial is for each side to put up or shut up. If a defendant doesn’t put up, they should be viewed as guilty (regardless of the verdict, but especially if the verdict is against them)