In response to my recent lengthy posts on the injustice of the conviction and brutal sentencing of former Enron executive Jeff Skilling, many folks who have not followed the Enron criminal cases closely have observed to me that they did not realize that the Enron Task Force relied almost entirely on testimony from cooperating witnesses who had copped pleas with the Task Force in convicting Skilling.

That approach, coupled with the Task Force’s equally dubious tactic of freezing exculpatory testimony for Skilling and the late Ken Lay out of the trial, raises serious appellate issues regarding the legitimacy of the entire prosecution against Skilling and Lay.

Interestingly, the same dynamic is at play in the current prosecution of the Milberg Weiss law firm. Larry Ribstein has been at the forefront of pointing out the injustice of the prosecutorial tactic of “paying” witnesses and proposing a framework for addressing it.

Recently, Professor Ribstein posted the paper that he and Bruce Kobayashi are developing on this issue, The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation, which includes in its abstract a wonderfully cogent sentence regarding the essence of the problem:

[T]he . . .important hypocrisy is that Milberg’s prosecutors are essentially paying the same witness . . . that Milberg is being prosecuted for paying.