Peter Lattman posts this interesting piece on the oral argument in the Bernie Ebbers appeal that could well impact the key evidentiary issue in the ongoing trial of former Enron executives Ken Lay and Jeff Skilling.
In the Ebbers appeal, Ebbers counsel Reid Weingarten — who is also counsel for former Enron chief accountant Richard Causey — is arguing that the Ebbers prosecution team unfairly prevented the defense from calling key defense witnesses by fingering them as targets of the WorldCom criminal investigation. In so doing, Weingarten is arguing that the prosecution effectively prevented the defense from presenting exculpatory testimony to the jury because each of the targeted witnesses declined to testify on the basis of their privilege against self-incrimination under the Fifth Amendment of the U.S. Constitution. The Second Circuit panel appeared sympathetic to the argument during oral argument of the Ebbers appeal, which is potentially bad news for a prosecution team that has taken the tactic of chilling potential defense witnesses to an entirely new level in the Lay-Skilling case and other Enron-related prosecutions. Ellen Podgor comments here along the same lines.