Monday, January 30, 2006
Bernie Ebbers has a lot riding on his appeal as he received a sentence of 25 years. (see here) He has been permitted to be free pending his appeal, and in large part this is because of the significant issues raised in this appeal. (see here). A panel of the second circuit, in oral argument, heard Reid Weingarten, Ebber's attorney, argue that defense witness immunity should have been provided in this case. (see here)
Although the prosecution has ample opportunity to obtain immunity for its witnesses, the defense usually is not provided with this benefit. It is a major disadvantage that the defense has in a criminal case. While prosecutors can offer plea deals and witness immunity and then use the individuals against an accused, the defense has to find witnesses who are not intimidated by fear of future prosecutorial action, like being indicted.
CNN (Reuters) (here) also notes that the issue of "conscious avoidance" of knowledge of the fraud at WorldCom and court instructions regarding the mens rea of the crime were discussed at the oral argument. (See here) Should the jury have been allowed to consider the "ostrich" defense? Finally, as one might imagine, the court asked about the high sentence received by Ebbers. (CNN Reuters here)
It is interesting to see these issues being discussed just as Ken Lay's and Jeffrey Skilling's trial begins. Like Ebbers, Lay and Skilling also may have problems presenting some of their witnesses as a result of these individuals being fearful of prosecutorial retribution. And like Ebbers, a key issue for Lay and Skilling will be whether they can be held criminally liable for acts in which they may not have been a major or minor participant. Where is the line between actual knowledge and avoiding knowledge? For Ebbers the question is surely whether avoiding knowledge should be a sufficient standard for someone receiving a 25 year sentence.