At close of business today, Chron posted its report on the government’s reply to Jeff Skilling’s supplemental brief. Though I can’t find the original brief, I think it’s pretty clear from the report that I was exactly right when I said the Task Force would claim their withholding Brady evidence was immaterial.
Former Enron CEO Jeff Skilling’s claims that federal prosecutors hid critical evidence to buff up their case against him while illegally undermining his defense are overblown with “hyperbolic rhetoric,” the government said in a filing with an appeals court today.
When I see the words “hyperbolic rhetoric”, I immediately think of Judge Sim Lake saying Jeff Skilling had condemned thousands to a lifetime of poverty. Merely claiming, correctly, that the government withheld Brady evidence is not hyperbole.
In a rare supplemental appeal filing earlier this month, Skilling’s lead trial lawyer, Daniel Petrocelli, alleged that more than 400 pages of FBI notes of interviews with former Enron finance chief Andrew Fastow show inconsistencies and outright contradictions between his early statements and his testimony in Skilling’s 2006 trial.
As a result, Skilling’s lawyers say, prosecutors presented evidence they knew was contradicted by information they failed to disclose.
The government responded today that claims prosecutors shirked the legal duty to give the defense information favorable to Skilling “rely on isolated snippets culled from 420 pages of handwritten notes and stripped of their context.”
If “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 skewering Fastow’s testimony, the government said.
Minimal value? Since when is the government allowed to make a judgement on the value of the exculpatory evidence, and by the way, is that a concession I hear? Are they saying that yes, there was some that we kept, but no biggie? Sounds like it to me.
Petrocelli tried to obtain the notes before and after Skilling’s trial to track Fastow’s statements over time, but prosecutors objected and U.S. District Judge Sim Lake denied the requests. Prosecutors gave the judge a portion of the notes and summaries in a binder that Lake examined for inconsistencies during Fastow’s testimony. The judge returned the binder to the government without comment.
Petrocelli later asked the 5th Circuit to intervene, and Judge Patrick Higginbotham ordered the government to turn over the notes last November. Petrocelli received the voluminous notes in late December with a requirement that they remain sealed from public view.
In a filing earlier this month, Petrocelli said the notes revealed evidence he called “a sledgehammer that destroys Fastow’s testimony” that infects the government’s entire case against Skilling.
Oh I still love that quote.
Petrocelli cited inconsistencies and contradictions between Fastow’s FBI interviews and his testimony. In the trial, Fastow said that he and Skilling had secret agreements that a Fastow-run partnership wouldn’t lose money if it bought troubled Enron assets to boost the energy company’s earnings.
For example, Petrocelli said Fastow testified that he and Skilling discussed Fastow’s list, nicknamed the Global Galactic, that noted undocumented side deals between Fastow’s partnership and Enron. The FBI notes said Fastow “doesn’t think (he) discussed the list with JS.”
Skilling testified that he knew nothing of the Global Galactic.
The government’s response says Skilling’s lawyers received a summary of FBI interviews with Fastow, and it said Fastow had told investigators that he had not discussed the Global Galactic with Skilling. It said he discussed it with former Chief Accounting Officer Richard Causey, who told him that he had discussed it with Skilling. Neither the government nor the defense called Causey to testify in the trial.
“Fastow never mentioned the list to Skilling and may not have used the phrase Global Galactic when speaking to Skilling,” the government quoted the summary as saying.
Perfect timing. I just got my hands on the brief. More after I read that.