Wednesday, March 26, 2008

Government Responds to Skilling Supplemental Brief

Jeffrey Skilling filed a supplemental brief discussing the failure of the government to provide exculpatory material, specifically items now discovered as a result of the release of the Fastow Notes (see here, here, and here).  The government has now responded with an 83-page brief that challenges the defense position. Perhaps the paragraph that sums up the government position best is seen here -

"At trial, the government provided the district court with the rough notes underlying those 302s so that the court could monitor Fastow's testimony and disclose to Skilling any information in the notes that could be used to impeach Fastow.  Now, having obtained those notes while his conviction is on appeal, Skilling argues that they contain undisclosed exculpatory information and show that the government presented false testimony to the jury. As explained in detail below, Skillings' claims rely on isolated snippets culled from  420 pages of handwritten notes and stripped of their context.  Put in its proper context, and divorced from Skilling's hyperbolic rhetoric, each portion of the notes on which Skilling relies contains information that Skilling possessed prior to trial or that would have had minimal value in impeaching Fastow. "

So the government is claiming that the items would have "minimal value."  If that's the case, why didn't they just give them to defense counsel?  Why should we have after-the-fact discussions of whether an item was disclosed and whether it would have made a difference? When an individual is being given a sentence of 24 years, shouldn't the accused be allowed to have everything to properly present a defense to the jury?

Later in the government response they state:

"Finally, if the government had disclosed the information in the February 4, 2004 note, Skilling could not have profitably used it to impeach Fastow.  If Skilling had impeached Fastow with the note, the government would have been entitled to rehabilitate Fastow with the notes showing that on two later occasions he recalled Skilling knew of the quid pro quo."

Should the government be deciding the value of impreachment and rehabilitation evidence?  Isn't that a role we leave to juries?

See WSJ Blog here, Mary Flood's Houston Chronicle Blog here, Kristen Hays - Houston Chronicle here

(esp)

Addendum - Government's Brief -

Download usa_v. Skilling Case# 06-20885 USCA, 5th Circuit 3-25-08 Supplemental Brief by Appellee USA .pdf

(w/ a Stetson hat tip to Whitney Curtis)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2008/03/government-resp.html

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Comments

You said:
"So the government is claiming that the items would have "minimal value." If that's the case, why didn't they just give them to defense counsel?"

And:
"Should the government be deciding the value of impreachment and rehabilitation evidence?"

THANK YOU! I've been screaming that for days, and not even the Enron bashers can give me a decent answer for that. To my mind, the prosecution is bound by duty and law to hand over the material. It doesn't get to make the judgement on what is valuable or to what extent.

I feel very smug now that I've been justified by your great legal mind. : )

Posted by: Cara Ellison | Mar 27, 2008 11:06:57 AM

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