Monday, September 12, 2005

Judge Lake's Modest Solution to the Recalcitrant Witness Problem

The defendants in the Enron conspiracy trial, Ken Lay, Jeffrey Skilling,and Richard Causey, received less than the dismissal they sought from U.S. District Judge Sim Lake at a hearing on Sept. 8 for alleged witness intimidation by the Enron Task Force.  Instead, Judge Lake accepted the Task Force's recommendation and will write a letter to the lawyers for 38 witnesses who have not responded to defense requests for interviews, informing them that the government will not retaliate against them if they choose to meet with the defense lawyers.  Judge Lake will not, however, order the government to produce any of its cooperating witnesses for interviews, and said that he has not made any finding that the prosecutors engaged in any illegal activity in this area. A Houston Chronicle article (here) discusses the hearing and the Judge's decision to write the letter.

The interesting question is whether the lawyers for the 38 "lucky" recipients of Judge Lake's letter should have their clients agree to an interview with the defense team.  If the witness has nothing of any importance to say, then there is little risk, but that's tough to determine at this point.  If the witness believes he or she has information that might implicate him/herself in illegal conduct, then speaking with the defense lawyers without a grant of immunity would be a serious mistake, and it's unlikely the government will grant immunity to facilitate the defense gathering evidence. 

If the witness has inculpatory evidence about one or more of the defendants, and may be called by the government, allowing that person to speak with the defense lawyers only creates more cross-examination material, and so the lawyer is unlikely to allow the client to speak.  If the witness has exculpatory information, and there is no risk that the witness will also be implicated in any criminal activity, then the lawyer can recommend speaking with the defense lawyers.  The problem with that scenario, however, is the same as the no-information situation: how does a lawyer assess whether the client may have any criminal exposure at this point, particularly in light of the government stating that up to 114 Enron employees are unindicted coconspirators?  The careful lawyer may see little upside to meeting with the defense lawyers -- I assume the attorney's fees for this meeting will be borne by the witness -- and plenty of possible downsides to any interview.  It's a little bit like the old Woody Hayes view of passing: only three things can happen if you meet with the defense lawyers, and two of them can be bad, so why take the risk.  I will be surprised if many of the 38 letter recipients agree to meet with the defense team. (ph)

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» Woody Hayes' advice to defense counsel in the Enron cases from Houston's Clear Thinkers
Peter Henning over at the White Collar Criminal Prof Blog is skeptical that U.S. District Judge Sim Lake's letter-writing campaign is going to induce any of the recalcitrant witnesses in the criminal case against former Enron executives Ken Lay, Jeff... [Read More]

Tracked on Sep 12, 2005 5:15:12 AM