Prosecutorial Misconduct in the Jeff Skilling Prosecution
Conservative Judicial Activism

Prosecutorial Misconduct in the Enron Prosecution

There was substantial prosecutorial misconduct in the prosecution of Ken Lay and Jeff Skilling.  Here are a few bullet points:

The Enron Task Force withheld exculpatory evidence.  There were several witnesses with evidence exculpating Ken Lay and Jeff Skilling.  How did the prosecutor prevent these witnesses from testifying?  Doesn't Brady v. Maryland require the government to hand over exculpatory evidence?  The Enron Task Force lawyers were clever.

The prosecution was not just against Lay and Skilling: It was also against 100 unindicted co-conspirators.  Witnesses who were willing to testify on Lay' and Skilling's behalf feared that they were one of the unindicted co-conspirators.  Would-be witnesses asked DOJ for a promise not to prosecute them.  DOJ denied the request.

Lawyers then asked the trial court to grant immunity to these witnesses.  The trial court, U.S. District Judge Sim Lake, denied the request.  Why?  Because the prosecution team told the court that there might be future prosecutions.  We all knew this was a lie.  The trial court accepted the explanation

The witnesses who could have offered Brady material refused to testify on Lay's and Skilling's behalf.  They instead stated they would "plead the Fifth" if called to testify.

Since the Lay and Skilling convictions, there have been no prosecutions of the unindicted co-conspirators.  That, again, is unsurprising.  Everyone but Judge Lake saw through the ruse.  Perhaps Judge Lake wasn't looking closely enough? 

The Fastow plea agreement.  The only solid witness against Lay and Skilling was Andrew Fastow.  Fastow plead guilty, and cooperated with the government.  According to the plea agreement, Fastow was supposed to receive 10 years in prison. 

At trial, Fastow was cross-examined under the assumption that he'd get 10 years.  After the guilty verdicts, Fastow's lawyers moved for a 6 years prison sentence. The prosecutor did not object. The judge sentenced Fastow to 6 years instead of the agreed-upon 10.  

Fastow's sentence was lawlessly reduced by 40%.  Might a jury had viewed Fastow more skeptically had they known that he'd only receive 6 years in federal prison?  Of course.  Nevertheless, the trial court refused to grant Skilling a new trial based on the lie about Fastow's prison sentence.

Fastow's perjury at trial/the Enron Task Force's violation of Brady v. Maryland.  Tom Kirkendall summarized this issue well

Fastow testified at trial that he told Skilling about the Global Galactic agreement, which purportedly documented a series of illegal "side deals" between Fastow and former Enron chief accountant Richard Causey that guaranteed Fastow would not lose money on certain special purpose entities that he was managing. Skilling denied any knowledge of the purported agreement.

After Skilling's conviction, the Skilling defense team discovered Fastow interview notes that the Enron Task Force had failed to disclose to the Skilling team prior to trial. Among other things, those notes revealed that Fastow had told the Task Force lawyers that he didn't think he had told Skilling about the Global Galactic agreement. The Fifth Circuit characterized the Task Force's non-disclosure as "troubling" in inviting Skilling to file a motion for new trial with the District Court.

Only in the Fifth Circuit Court of Appeals is prosecutorial misconduct merely "troubling."  

The Enron prosecution was a blight on the criminal system.  Even accepting the dubious legal theories under which Skilling and Lay were prosecuted: Prosecutors violated the law in order to obtain their convictions.  In every sense of the world, the prosecutors were unethical.  Incidentally, the same honest service statute used against Skilling applies to prosecutors.  Why hasn't a prosecutor ever been prosecuted for violating the honest services statute?  To ask the question is to play naïve.

Although this is a post about prosecutorial misconduct, it's obvious that the prosecutors could not have violated federal statutory and constitutional law had the trial judge not deferred to the unethical prosecutors.  U.S. District Judge Sim Lake made the mistake of taking the Enron Task Force on their word.  Whether Judge Lake has any regrets remains an open question.

Judge Lake certainly has not granted a new trial, even when faced with substantial evidence of prosecutorial misconduct.  Judge Lake has not demanded that the prosecutors who lied to him appear before him in court.  Nor has he reported the unethical prosecutors to the State Bar.

One will have to wonder, then, whether Judge Lake's erroneous rulings were the product of a misunderstanding of the law, or a misunderstanding of the role of the judiciary?  In our constitutional system of separated powers, judges are judges - not prosecutors.

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