Monday, March 24, 2008
Tom Kirkendall's Houston ClearThinkers has the Motion to Dismiss filed on behalf of a former Merrill Lynch executive who is awaiting retrial (see here). As anticipated, the Fastow Notes - and the alleged failure of the prosecution to provide exculpatory material to the defense - may prove devastating to this prosecution. The Motion includes numerous references to the Model Rules of Professional Conduct, the ABA Standards for Criminal Justice, and the Restatement (Third) Law Governing Lawyers. Although ethics rules are usually not enforceable at law, they have been used to provide a standard for appropriate conduct in the community. In this case, the Motion alleges many different violations of ethics rules.
The key issues for the court will likely be: 1) did the prosecution withhold exculpatory material; and 2) what is the appropriate remedy. Both of these issues offer interesting aspects. On the first one, a question will be whether the Enron prosecutors will be testifying or is the paper trail sufficient to present each side of the argument. It is likely that the prosecution will vigorously argue the second issue (that a retrial cures this problem) in an attempt to avoid losing the case on a court dismissal. But the more important question remains - why are the Fastow notes so late in coming (see here).