Having used the weekend to study the government’s reply to Jeff Skilling’s supplemental brief, I am deeply comforted. The facts laid bare are emphatically in Skilling’s favor for overturned convictions. The main thrust of the government’s reply to Jeff Skilling’s Brady arguments seems to be something along the lines of: “Had we been on the jury, we wouldn’t have found these things material.”
Brady doesn’t allow for that kind of judgement. Brady simply requires the government to turn over the evidence and let the jury sort it out. The government’s concession that they had exculpatory material yet chose not to turn it over seems a clear violation of Skilling’s Constitutional rights.
This might be the most egregious violation – but it’s far from singular in a case that is riddled with prosecutorial abuse. Without even discussing the legal issues, substantial violations, lies, and wrong theories posited at trial, the Enron Task Force is guilty of acting like the criminals they accused Ken Lay and Jeff Skilling to be. To whit:
*Prosecutors used highly prejudicial “perp walks” to poison the jury pool.
*Prosecutors used highly prejudicial press conferences about the case to poison the jury pool.
*Prosecutors pushed for the trial to take place in Houston, where the energy company was headquartered and where thousands were still furious and reeling from lost jobs, lost retirement funds, and the feeling of disgrace.
*Voir Dire was incomplete.
*Prosecutors have used that god-forsaken “un-indicted co-conspirator’s” list to keep exculpatory witnesses silent.
*Prosecutors refused to grant immunity to those who could testify on Skilling’s and Lay’s behalf.
*Prosecutors threatened witnesses, warning them away from testifying on behalf of Jeff Skilling and Ken Lay.
*Prosecutors suppressed evidence (ie, the Fastow Notes).
*Prosecutors used plea bargains to manipulate innocent people into confessing to crimes they didn’t commit – and dragging down others with them.
*Prosecutors tried to have Skilling’s bond revoked for drinking too much one night.
*Prosecutors tried to have Skilling’s bond revoked when he said “Hi” to a prosecution witness he saw while on a walk in their neighborhood.
*Prosecutors encouraged Fastow to lie on the stand (substantiated by the Fastow Notes.)
*Prosecutors know the “personal reasons” Skilling left Enron, yet at trial they continued to press him to give another reason. They allowed the jury to believe he might have left because he feared Enron was a “house of cards” about to come crashing down.
*Prosecutors pointed out Skilling’s jury consultant during the trial. Of course they had their own jury consultants but it made Skilling appear rehearsed.
*Prosecutors asked Skilling about the Photofete investment at trial which he was not prepared for because it had nothing to do with the charges against him.
*Prosecutors implied Skilling used inside information and told his ex-wife and current wife to sell Enron stock (without prosecuting the wives for insider trading or any other crime).
*Prosecutors pushed for a broad interpretation of the “honest services” statutes and a willful blindness concept that essentially did away with the jury having to find criminal intent. (Dan Petrocelli even tried to point out at sentencing that there was no mens rea; that Jeff Skilling never set out to commit a crime. His argument fell on deaf ears.)
*Prosecutors successfully pushed for inadequate reliance and materiality instructions.
*Prosecution successfully pushed for no jury instruction of secret side deals.
*Prosecutors swore up and down that Andy Fastow was “locked” into a ten year sentence and thus had no reason to lie. In fact, his sentence was only six years.
*Jeff Skilling’s sentence of twenty-four years is unreasonable and punishes Skilling for the bankruptcy of Enron – which was not even an allegation the Task Force made, much less could sustain.
*Jeff Skilling’s sentence was enhanced for threatening a “financial institution”, which Enron was not.
*The District Court erred in assigning Skilling an enhancement for “obstruction of justice.”
The list goes on and on. Jeff Skilling was never a man on trial for his life. He was a scapegoat being used to prove a point about Enron – and about the power of the government at a time when the American people needed a hero wearing an American flag on his lapel.