Wednesday, December 28, 2005

The Causey Plea - Why So Late?

Everyone now seems convinced that former Enron Chief Accounting Officer Richard Causey will in fact enter a plea (See CNN here, NYTimes here, Houston Chronicle here), although we will have to wait until later today to get the terms of the agreement.  It is without doubt that a key term will be cooperation. 

It also remains to be seen whether Skilling and Lay's joint defense agreement with Causey will result in a delay in the trial.  Most likely the defense agreement included a provision that anticipated a possible plea by one of the three. There are several possibilities here.  Among them are: 1) It is possible that the three were careful not to disclose privileged information and only used the agreement for investigation purposes -- it can be cost effective to use one set of investigators for three people; 2) The agreement will preclude disclosure by Causey of anything regarding the defense of the three - and the government will be limited in using this witness; 3) New counsel will need to be secured for Skilling and Lay so that there can be a cross-examination of Causey without violating the joint defense agreement.  See also post here and here.

But why do pleas happen so late?  Why does a defendant suddenly faced with the possibility of jail time decide to fold and avoid the risk of greater time?  Oftentimes the reason for the late plea is because the government turns over discovery material just before trial.  Although the government is required to turn over Brady, or exculpatory material, early on, witness statements that are not exculpatory do not get turned over in the same manner.  Jencks material (witness statements) are not required to be turned over until after the witness has testified for the government.  Because this could result in a long recess in the middle of the trial (and thus irritating a trial judge), the government often turns Jencks material over pre-trial.  Unfortunately, however, the government waits until 3, 5, or 10 days before trial to give this material to the defense. (See study of when prosecutors turn over Jencks material - Podgor,  Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 GA St. L. Rev. 651 (1999)). Some prosecutors even ruin defense counsel's weekend before trial by dumping large volumes of material on them on Friday with a Monday trial looming. The result of seeing what a cooperating witness might have said to the government or a grand jury is that suddenly an accused wants to enter a plea.  The risk of going to trial, and the risk of an even greater sentence, may be suddenly realized when someone sees this information.

Now we don't know if this happened here, but receiving Jencks material late in the process is a known fact. It's a card in the prosecution's deck that they can use or abuse as they see fit.

For commentary on the effect of such a plea, check out Tom Kirkendall's blog - Houston's Clear Thinkers here.


Addendum - The Washington Post here notes that the time of the court hearing is 3 P.M. today.

Addendum - Houston Chronicle reports here on likely terms of the plea agreement.

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