Thursday, September 8, 2005

Has the Enron Task Force Put the Prosecution in Jeopardy?

Tom Kirkendall on the Houston's Clear Thinkers blog has a post about the latest defense filing in the conspiracy prosecution of Ken Lay, Jeff Skilling, and Richard Causey seeking dismissal of the charges due to prosecutorial misconduct from efforts by the Task Force to keep witnesses from speaking with defense counsel.  The filing (available here) goes into great detail to show that the government has discouraged various potential witnesses, many of them unindicted coconspirators, from communicating with defense counsel except for a smattering of former employees.  The defense faces two significant hurdles.  First, the factual allegations are, at least in part, based on a conspiracy theory, as asserted by its expert, Professor Michael Tigar, who states in an affidavit that "[i]n my experience, this level of silence is not normal."  The fact that the court issued an order that the government not discourage witnesses from meeting with the defendants' lawyers, which was provided to potential witnesses, and still so few have responded could be proof of a secret campaign to keep the defendants from gathering evidence.  Like every nefarious conspiracy theory, however, it rests in substantial part on inaction, not action.  While denying the conspiracy may be proof of its existence, that is not the strongest case.

The second problem to obtaining a dismissal based on prosecutorial misconduct is establishing prejudice, which requires that the defendants make some showing of what evidence they have been denied.  Courts are loath to dismiss charges pretrial based on prosecutorial misconduct, at least as a means of punishing the prosecutor without a showing of substantial prejudice.  What will all these witnesses provide to the defendants?  Like most white collar crime cases, the Enron conspiracy prosecution is based more on documents than testimony.  While some witnesses may provide some exculpatory evidence, it is unlikely that any one will make (or break) the government's case, except perhaps for former CFO Andrew Fastow.

Even if the defense request for dismissal is denied, it serves a purpose of putting a spotlight on the prosecution's tactics that have clearly made Judge Sim Lake uncomfortable.  A motion need not be granted to be successful, and the aggressive defense has probably knocked the government off its stride.  (ph)

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