Wednesday, August 2, 2006

Barry Pollack Comments on the Enron Barge/Merrill Lynch Case

NACDL White Collar Crime Co-Chair Attorney Barry Pollack's comment on the decision:

"As with the Broadband case, the Enron Task Force attempted to transform the efforts of employees to serve their employer into a scheme to defraud their employer. The Fifth Circuit has correctly refused to endorse the Task Force's tactics. As in the Arthur Andersen case, the Task Force allowed its zeal to prosecute perceived wrongdoers to trump both the law and common sense."


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It's unfortunate that Pollack had to resort to name-calling. The government and the trial judge were clearly wrong under Rybicki to allow the honest services charge to go to the jury, but let's not forget that there was a clearly sufficient books and records charge and a very arguably sufficient money or property charge, both of which may be retried. Is the falsification of Enron's books something that allows "zeal" to "trump ... common sense"? No, the key mistake here by the government (a very dumb mistake, admittedly) was not to ask for a special verdict; if they had, critics would likely be singing a different tune. Let's be grown-ups here. Geez.

Posted by: Anonymous | Aug 2, 2006 6:44:25 PM

Response by Barry Pollack -

I apologize if any reader has interpreted my comments with respect to the Nigerian Barge reversals as an exercise in "name-calling." That was certainly not my intent. Having spent more than four months in trial against the Enron Task Force (the first Broadband trial -- in which the jury hung with respect to my client -- and the second Broadband trial -- in which the jury acquitted my clients on all counts), I believe that I have had a unique opportunity to see the Task Force in action. I have seen very dedicated, thoughtful and talented Task Force prosecutors work. However, I believe that the reversals in the Nigerian Barge case further demonstrate that the whole of the Task Force has been less than the sum of its parts. The Task Force was reversed 9-0 by the Supreme Court in the Arthur Andersen case. The Task Force failed to win any convictions following a three-month jury trial in the first Broadband case. And, the Task Force has now seen the bulk of its convictions in the Nigerian Barge case reversed. While the Task Force obviously garnered high profile convictions against Mr. Lay and Mr. Skilling (convictions that have not been scrutinized by an appellate court), it is difficult to deny that in each of the Task Force's other cases, juries and appellate courts have repeatedly declined to adopt the Task Force's view of the facts and the law. It is my opinion that this is not because of a single narrow tactical mistake (the failure to ask for a special verdict form), but rather is the result of a larger pattern of the Task Force allowing its zeal to overtake common sense.

Posted by: esp | Aug 4, 2006 7:50:10 AM

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