Charted Crime & Enron
last witness on the stand *
Taking the FBI to task
"At the Enron trial, the severe imbalance in witness access was obvious".
On irreparable prejudice: * compare 'Enwrong Cold Case' under The Very Complexxon
From the Los Angeles Times
Why Credit Crisis Spread
Other Priorities Sapped Resources
WASHINGTON — - Long before the mortgage crisis began rocking Main Street and Wall Street, a top FBI official made a chilling if little-noticed prediction: The mortgage business, fueled by low interest rates and soaring home values, was starting to attract shady operators, and billions in losses were possible.
But it wasn't just regulators who were looking the other way. The FBI and the Justice Department, which are supposed to police potentially illegal activities by bankers and others, were so focused on national security and other priorities that they paid little attention to white-collar crimes that might have contributed to the lending and securities debacle.
Longtime Houston attorney Tom Kirkendall's observations on developments in law, business, medicine, culture, sports, and other matters of general interest to the Houston business, professional, and academic communities.
Calling expert witnesses
The article "Dueling experts in U.S. courts," (Aug. 12) highlighted the differences between American law and the laws of other countries regarding expert witness testimony. As the article correctly points out, juries in the U.S. often have difficulty evaluating the testimony of dueling experts and frequently make decisions based on factors such as the expert's demeanor, credentials and ability to condense complex information into easily digestible bite-sized chunks.
Unfortunately, an expert's appearance and language facility have nothing to do with whether her testimony is scientifically supported.
The nature of the American process unwittingly demeans science and reinforces the skepticism with which many juries and judges treat expert testimony. Because experts are called by one side or the other, the experts are often denounced as hired guns. Jurors expect that experts will say anything the side that is paying them wants them to say.
Paid experts called by one side or the other are often forced into either stating conclusions more forcefully than may be scientifically warranted or appearing wishy-washy and unconvincing to a jury.
One solution to the expert witness credibility problem is to follow the course prescribed in many countries and insist that only judges call and examine expert witnesses. Judges would be signaling to jurors that the court finds the expert witnesses impartial and credible.
When there are legitimate discrepancies in the scientific community, U.S. courts could embrace a practice used in Australia that was alluded to in the article. In that procedure, which is known as concurrent evidence, experts testify together at trial and clarify issues, looking to find common ground.
Adopting a less adversarial approach to the introduction of expert testimony in American courts would strengthen the jury system.
Patrick Mattimore, Gex, France Former California prosecutor
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September 10, 2007
The Skilling Appeal Brief
As Ashby Jones and Peter Henning noted on Friday, lawyers for Jeff Skilling filed his appellant's brief this past Friday along with a motion requesting that the Fifth Circuit Court of Appeals waive length-of-brief rules under the special circumstances of Skilling's appeal. Inasmuch as the brief is a 240-page tome, my sense is that it will probably be modified slightly to include tables of contents and authorities when the final version is filed after the Fifth Circuit rules on the the length-of-brief motion (Update: I've since updated the link above to include the final version filed with the Fifth Circuit).
I read the entire brief while watching football over the weekend and it is brilliant. The brief is extremely well-written and organized, and eschews much of the technical legal jargon that often makes appellate briefs a chore to read. It would be extremely difficult to read this brief objectively and come to the conclusion that Jeff Skilling has not been the victim of a gross miscarriage of justice (see earlier posts on that subject here, here and here).
The first statement of the brief -- the usually mundane statement advising the appellate court whether the appellant believes that oral argument would be helpful to the court -- Skilling's appellate team crafted the best such statement that I've ever read:
Defendant-appellant Jeffrey Skilling requests oral argument. This case is perhaps the most prominent and publicized white-collar case ever prosecuted. But with certainty, it is the most misunderstood case, enveloped from the outset by perceptions and myths that bear little resemblance to the actual facts. Almost everyone believes, for instance, that Skilling was indicted, tried, and convicted for causing the 2001 bankruptcy of Enron Corporation and its devastating effects on thousands of Enron employees and shareholders. As the government itself conceded, however, the case against Skilling had nothing to do with Enron’s collapse.
Following that statement is an 11-page introduction, which -- if you don't have time to read the entire brief -- is an excellent overview of the arguments presented. My favorite parts of the brief are as follows:
The Statement of the Case (pp. 15-59). This is a marvelously clear description of Enron's business and the superficiality of the evidence that the Enron Task Force presented at trial against Skilling. In discussing Enron with hundreds of folks over the past several years, I understand how few people really understood that Enron was an innovative and successful business before its demise. Fewer still understood the shallowness of the Task Force's case against Skilling. This section of the brief takes on those widely-held misconceptions and dispenses with them cogently.
The Change of Venue Section (pp. 122-175). Given the venomous environment in Houston regarding all things related to Enron, U.S. District Judge Sim Lake's refusal to grant Skilling's motion to change the venue of the trial has always struck me as odd. Skilling's brief provides truly shocking information (heretofore not public) about the enormous bias against Skilling expressed in the answers to the juror questionairres of the jurors who ended up on Skilling's jury! Also provided in this section is heretofore non-public information on Judge Lake's questionable refusal to grant Skilling's proposed multiple strikes for cause on a large number of the jurors who who had expressed clear bias against Skilling and Lay. As the brief notes, if there was ever a trial that called for a change of venue, Lay-Skilling was the one.
The Prosecutorial Misconduct Section (pp. 175-206). The subject of this section has been a common topic on this blog, but this section provides additional unknown evidence of the Task Force's abusive tactics in prosecuting Skilling and other Enron executives. Moreover, the brief sums up brilliantly the prejudicial impact of the Task Force's threats against witnesses who would have provided exculpatory testimony for Skilling (all record citations contained in the brief are excluded here):
At trial, the severe imbalance in witness access was obvious. The Task Force’s case consisted mostly of cooperators from Enron’s senior management—people who worked with Skilling at Enron and who were his friends, including some of his closest friends. With plea or non-prosecution agreements with the Task Force, these witnesses were under the Task Force’s complete domination and control. They were obligated to testify, contractually bound to admit guilt and support the allegations against Skilling, and their ultimate fate rested in the “sole and exclusive discretion” of the Task Force. None of them would meet with Skilling or his counsel. At least two (Rice and Belden)—and probably all of them—were clearly ordered not to.
As if on cue, even before the ink on the Skilling brief was dry, some of the more vitriolic members of the mob that lynched Skilling were already dismissing it without so much as a smidgen of analysis. But my bet is that a fair review of this brief will leave most readers shocked over the weakness of the case against Skilling and the government's ruthless tactics in pursuing a conviction despite that weakness.
The popular myth of the mob is that Enron was a house of cards that was propped up by a conspiracy of greedy executives who told lies to trusting but unknowing investors. The truth is that Enron was simply a highly-leveraged, trust-based business with a relatively low credit rating and a booming trading operation that got caught in a liquidity crunch. That liquidity crisis occurred when the credit and equity markets became spooked by a variety of factors in late October, 2001, including revelations about Fastow's embezzlement of millions and the volatility in markets after the September 11, 2001 attacks on New York and Washington, D.C.
As I've noted many times over the years, Fastow's embezzlement from Enron is a crime, but Enron's unfortunate demise is not, nor should it be. Beyond the shattered lives and families, the real tragedy here is that an angry mob convicted Jeff Skilling, trampling the rule of law and the administration of justice along the way. In truth, none of us would be able to survive, as Thomas More reminds us, "in the winds that blow" from the exercise of the government's overwhelming prosecutorial power in response to the demands of the mob. I continue to hope that Jeff Skilling's unjust conviction and sentence are reversed on appeal. Not only for his and his family's benefit, but also for ours.
Posted by Tom at September 10, 2007 12:15 AM
The alleged crimes were slightly different, but there isn't a whole lot of difference between the Skilling case and the Duke Lacrosse case.
I watched this trial from far away but have studied the matter very carefully. Since I didn't lose much, if any, money on Enron, I am not part of the 'angry mob'.
The power of prosecutors to wreck innocent lives is the great untold story of our time. These prosecutors - the Enron Task Force - took their unbridled power to the next level. Shame on them and shame on incompetent judges such as Sim Lake who permit them to do so.
I would like to read the transcript. Is it posted anywhere?
Before stumbling on your postings about a year ago, I believed all the newspaper accounts about how Skilling and Lay were bad guys, crooks, liars, and thieves. But, as I have followed your postings, I have concluded that this was merely a public lynching (and one of many).
I am convinced that there has been serious prosecution misconduct and at a tremendous cost to the system and the defendants. Unfortunately, in the end, even if Skilling (and by extension, Lay) is vindicated, the stain and costs will remain. Additionally, I do not expect a Nifong like punishment for the prosecution. But, if these prosecutions are ever to be gotten back under control, we will need that kind of punishment. Simple reversals by the Appellate courts is not enough. This has been more about power and prestige than any concept of justice. It is one thing to have an adversarial system. It is quite another to concentrate all the power in the hands of one of the adversaries.
Seems like the popular myth is pretty well right on target. It's too bad the government can't outsource its prosecution.
Also, to compare Enron to the Duke lacrosse indictment is completely amiss - in Durham, I do not recall anyone on the team going to jail for a criminal activity, but if a couple of the players had been found guilty, it seems a mob mentality would (and most would agree should) be created that help make sure the coaching staff bear some responsibility. The better similarity is the Miami football team last season.
As an ex-Texan living in Northern CA, I doubt there is any venue for the Skilling trial that stands out as a locale where our business leaders can actually receive justice from overzealous prosecutors.
If this can happen here, Skilling doesn't have a chance anywhere. I don't know what it will take for sanity to prevail. These recent convictions including Black, Reyes, Naccio have left me deeply troubled about the state of our justice system.
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