Did the Prosecution Illegally Withhold Exculpatory Evidence in Enron? (updated)

Clarice Feldman
Former Enron Chief Skilling's is making a very explosive charge, apparently with evidentiary warrant, that the prosecution in Enron improperly withheld exculpatory evidence in its possession:

The stench of prosecutorial abuse has long hung over the Enron-related criminal cases. But the extent of that abuse became crystal clear this afternoon when the Fifth Circuit Court of Appeals granted former Enron CEO Jeff Skilling's motion to unseal his supplemental brief relating to the government's interview notes of former Enron CFO and chief Skilling accuser, Andrew Fastow. I bookmarked the supplemental brief in Adobe Acrobat to facilitate ease of review.

The brief reveals suppression of exculpatory evidence by the Enron Task Force on a massive scale. The entire brief is devastating to the Task Force's prosecution of Skilling and the late Enron chairman, Ken Lay. But if you do not have time to read the entire brief, read the excellent 11-page introduction, which includes the following passage:

The raw notes are shocking. The 420 pages of contemporaneous notes, which we have spent the last many weeks comparing to the thousands of pages of trial record and the Task Force's pretrial disclosures, confirm our worst fears. On the most crucial issues in Skilling's case-especially where it was only Fastow's word against Skilling's-the Task Force suppressed vital exculpatory evidence from its "composite" FBI Form 302s for Fastow and all other disclosures given to Skilling. The Task Force then proceeded to present critical testimony and argument at trial it knew was contradicted by the evidence withheld from Skilling.

Much of the suppressed evidence directly relates to-and refutes-the Task Force's pivotal contention that Skilling orally agreed to "secret side deals" to manipulate Enron's financial statements. This "side deal" theory underlies every count of conviction against Skilling. By depriving Skilling of key exculpatory evidence that Fastow conveyed in his interviews, the Task Force was able to skew the proof and convince the jury to accept Fastow's word over Skilling's. As the Task Force later told Fastow's sentencing judge and recounted in a law review article, Fastow's testimony and credibility were the cornerstones to convicting Skilling.  .   .  . Enron Task Force Prosecutor John C. Hueston, Behind the Scenes of the Enron Trial: Creating the Decisive Moments ("Hueston"), 44 AM. CRIM. L. REV. 197, 197-99 (2007). The substantial evidence the Task Force kept from Skilling all shares one chatacteristic-it was harmful to the Task Force's case against Skilling....

More on the Enron task force, here:

It's well past time that the DoJ exercise greater control over its prosecutors, I think.

h/t: topsecret

Update from Clarice Feldman:

I think letting loose on businesses these ambitious prosecutors who have no idea of business practices, hold a progressive's distaste for capitalism, have at their disposal some really nightmarish statutes and practices without substantial oversight is a recipe for prosecutorial abuse. I think that was the case here, in Anderson, in the Conrad Black matter.

I studied Soviet Law in law school and this is right out of the old Stalinist playbook, including the selective leaking to the press to demonize the defendants to the jury pool .
Former Enron Chief Skilling's is making a very explosive charge, apparently with evidentiary warrant, that the prosecution in Enron improperly withheld exculpatory evidence in its possession:

The stench of prosecutorial abuse has long hung over the Enron-related criminal cases. But the extent of that abuse became crystal clear this afternoon when the Fifth Circuit Court of Appeals granted former Enron CEO Jeff Skilling's motion to unseal his supplemental brief relating to the government's interview notes of former Enron CFO and chief Skilling accuser, Andrew Fastow. I bookmarked the supplemental brief in Adobe Acrobat to facilitate ease of review.

The brief reveals suppression of exculpatory evidence by the Enron Task Force on a massive scale. The entire brief is devastating to the Task Force's prosecution of Skilling and the late Enron chairman, Ken Lay. But if you do not have time to read the entire brief, read the excellent 11-page introduction, which includes the following passage:

The raw notes are shocking. The 420 pages of contemporaneous notes, which we have spent the last many weeks comparing to the thousands of pages of trial record and the Task Force's pretrial disclosures, confirm our worst fears. On the most crucial issues in Skilling's case-especially where it was only Fastow's word against Skilling's-the Task Force suppressed vital exculpatory evidence from its "composite" FBI Form 302s for Fastow and all other disclosures given to Skilling. The Task Force then proceeded to present critical testimony and argument at trial it knew was contradicted by the evidence withheld from Skilling.

Much of the suppressed evidence directly relates to-and refutes-the Task Force's pivotal contention that Skilling orally agreed to "secret side deals" to manipulate Enron's financial statements. This "side deal" theory underlies every count of conviction against Skilling. By depriving Skilling of key exculpatory evidence that Fastow conveyed in his interviews, the Task Force was able to skew the proof and convince the jury to accept Fastow's word over Skilling's. As the Task Force later told Fastow's sentencing judge and recounted in a law review article, Fastow's testimony and credibility were the cornerstones to convicting Skilling.  .   .  . Enron Task Force Prosecutor John C. Hueston, Behind the Scenes of the Enron Trial: Creating the Decisive Moments ("Hueston"), 44 AM. CRIM. L. REV. 197, 197-99 (2007). The substantial evidence the Task Force kept from Skilling all shares one chatacteristic-it was harmful to the Task Force's case against Skilling....

More on the Enron task force, here:

It's well past time that the DoJ exercise greater control over its prosecutors, I think.

h/t: topsecret

Update from Clarice Feldman:

I think letting loose on businesses these ambitious prosecutors who have no idea of business practices, hold a progressive's distaste for capitalism, have at their disposal some really nightmarish statutes and practices without substantial oversight is a recipe for prosecutorial abuse. I think that was the case here, in Anderson, in the Conrad Black matter.

I studied Soviet Law in law school and this is right out of the old Stalinist playbook, including the selective leaking to the press to demonize the defendants to the jury pool .