Monday, December 24, 2007

The Fastow Notes

As noted by Tom Kirkendall here, the Fifth Circuit has ordered that the Enron Task Force notes regarding Andrew Fastow need to be turned over to defense counsel. This order was initially made in the Jeff Skilling case and now has also been included in the Nigerian Barge case (see here).  The bottom line is that the Fifth Circuit, as it should, is going to allow defense counsel the opportunity to see these notes. Some observations here:

  • This could be the straw that breaks the back of the Enron Task Force. If the notes include exclupatory material that was not turned over to the defense counsel in these cases, it could prove important in Jeff Skilling's appeal. Even with a harmless error standard, Fastow was a key witness in this trial and exculpatory material regarding him should have been disclosed.  On the other hand, if there is no smoking gun here, the credibility of the Task Force may be heightened.
  • Skilling's reply brief alleges the destruction of exculpatory material (Reply, p. 133).   It certainly seems ironic that prosecutors who proceeded against Arthur Andersen for alleged destruction of evidence, might possibly have destroyed anything considering the high stakes involved in this case.  Obviously, the merit of this argument needs resolution.
  • Fastow's plea agreement for 10 years, but eventual sentence to 6 years raises some eyebrows.(see here)  Will the notes present evidence of a sidedeal?
  • Why were the prosecutors objecting so strenously to this disclosure of the notes?  If there is nothing here, then it shouldn't be a problem for defense counsel to see these items.  Or is that not the case? 

(esp)

Addendum - The Orders are:

Download 11107_order.pdf

Download 112807_order.pdf

Download 122007_order.pdf

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