This earlier post highlighted the Enron Task Force’s extraordinary concession regarding the invalidity of four of five counts upon which the the conviction of former Enron Broadband executive Kevin Howard was based. As noted in that post, the Task Force made a half-hearted argument that the fifth count — falsifying Enron’s books and records — should not be vacated, but this response from Howard exposes the vacuity of the Task Force’s position:

The key principle here is that when the basis for the conviction cannot be determined by examining the verdict form, and a ground exists which cannot be legally support such a conviction, the conviction must be set aside. One just cannot guess that the jury chose a proper basis instead of the improper basis.
This has been the law for almost half a century: [. . .]
The consistent teaching of the cases cited by the Government is that when a reviewing court reverses a conspiracy conviction for legal error, a reversal is also required for an offense which is the object of the conspiracy unless the Government proves beyond a reasonable doubt that there was no Pinkerton connection — that is, the defendant was convicted solely on his own direct conduct, and not because of the conduct of a co-conspirator acting in furtherance of the conspiracy.
The very heavy burden cannot be met by the Government . . . No impartial observer could find that Kevin Howard personally made any entry in the books and records of Enron Corporation, false or otherwise, or was responsible for any other person doing so. Most importantly, on this record, no reviewing court could find beyond a reasonable doubt that no co-conspirator from the common plan alleged in [the conspiracy to commit honest services wire fraud count] made such entry.

Howard’s conviction is almost certain to be vacated, just as the convictions of the four Merrill Lynch executives were vacated in the Nigerian Barge case. The Task Force prosecuted the case against Howard in the same manner as the case against the Merrill Four — assert an unwarranted expansion of a criminal law intended to punish kickbacks and bribes against defendants who did no such thing, and then blatantly appeal to the strong juror resentment (see also here) against anyone having anything to do with Enron to obtain a conviction.
Christine Hurt is currently working on a paper regarding the disparate burdens on civil and criminal defendants in business misconduct cases, and she notes here that many of the Enron Task Force prosecutors who promoted these failed prosecutions have gone on to lucrative careers in private practice. Professor Hurt observes that a defendant in a civil business misconduct lawsuit has protections against another party’s vexatious litigation tactics, but those protections do not exist in a criminal business misconduct case against an unpopular and usually wealthy defendant. As a result, justice and the rule of law is easily compromised in such cases, and the damaged lives, ruined careers, and destroyed wealth that lie in the wake of the Enron Task Force is tangible evidence of the enormous cost of such spurious prosecutions. As Professor Hurt wryly asks, are the now-wealthy former Enron Task Force prosecutors going to be held responsible for that cost?