Monday, June 13, 2005

Did Prosecutors Try to Intimidate a Defense Witness at the Enron Broadband Services Trial?

The prosecution of five former Enron Broadband Services executives sometimes seems like the old saw about being an anesthesiologist: it's 59 minutes of boredom and one minute of pure terror.  The Enron Task Force's one minute may have come on June 10, when a defense witness, Lawrence Ciscon, asserted that prosecutors called his attorney three times in the past week to reiterate that Ciscon is a "target" of the investigation, although no charges have been filed at this point.  Ciscon said that he voluntarily spoke with FBI agents in 2003 before being informed he was a target, but has since declined to speak with the government (anyone want to take a guess why?).  Tom Kirkendall in the Houston's Clear Thinker blog has the following discussion of the testimony on this topic (here):

The sparks began to fly when the prosecution attempted during cross-examination to impeach Mr. Ciscon's favorable testimony for the defendants that had been elicited during his direct examination. On cross, the prosecution had Mr. Ciscon confirm that prosecutors had advised him that he was a target of the Task Force's ongoing criminal investigation, thereby implying that Mr. Ciscon was testifying in favor of the Broadband defendants to save his own skin.

On re-direct examination, Mr. Ciscon confirmed that prosecutors had recently made three telephone calls to his attorney to "remind" Mr. Ciscon that he remained a target of the Task Force's criminal investigation. Defense counsel then asked Mr. Ciscon whether he considered those calls to his attorney as a "warning" not to testify? Mr. Ciscon replied that he did not consider the calls as merely a warning, but a "threat" by the Task Force prosecutors.

After that explosive testimony, the prosecution on re-cross-examination had Mr. Ciscon confirm that the prosecution's calls had all been to his attorney and that he had not talked directly with the prosecutors. Then, in a questionable move that simply highlighted the prosecution's thinly-veiled threat to Mr. Ciscon, the prosecution requested that Judge Gilmore strike Mr. Ciscon's testimony about the calls as inadmissible hearsay testimony.

Judge Gilmore -- who favored the prosecution during the early stages of the trial, but appears to be warming to the defense recently -- quickly denied the prosecution's request and pointed out that the government had waived any objection to Mr. Ciscon's testimony on the subject. The jurors watched the entire episode with rapt attention.

While the testimony may be little more than a sideshow, it certainly put the prosecutors in a very bad light, and lends credence to the defense claim that the government is more interested in a conviction than with ensuring a fair trial. A Houston Chronicle story (here) also discusses the testimony. (ph)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/06/did_prosecutors.html

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