Notes on a scandal.

The case of former Enron president Jeffrey Skilling – now serving 25 years for securities fraud, insider trading, and making false statements to auditors – will be argued on appeal before the Fifth Circuit in New Orleans today. Skilling’s conviction after trial stands as the only courtroom victory won by the DOJ’s Enron Task Force.

Skilling has two very compelling issues to present in the hopes of winning a new trial. First, Skilling’s lawyers argue that the government’s failure to turn over the raw notes taken by prosecutors of interviews with one of their key witnesses, former Enron CFO Andrew Fastow, deprived Skilling of a fair trial. The government claims that turning over summaries of the interviews was sufficient. However, not only did the defense specifically request the raw notes, but it is normal in many jurisdictions for prosecutors to turn over such notes. I, for one, believe the law requires it. The Skilling brief claims that by failing to turn over the notes, “the Task Force suppressed vital exculpatory evidence.” If the court rules it was error for the government to fail to provide the notes and they contained exculpatory material, Skilling could get a new trial. Second, Skilling’s lawyers argue that convictions on some of the counts in the indictment should be reversed on the grounds that fraud charges improperly alleged Skilling deprived Enron of the right to the “honest services” of its employees. The convictions in the so-called Enron Barge case were reversed on this basis. In that case the Court ruled that the defendants did not deprive Enron of honest services because employees were acting in the interests of the company.

As a working criminal defense attorney, I can tell you that cross-examination in a criminal trial is extremely challenging. Unlike in civil trials, there are no depositions to give you the opportunity for a “dry run.” Previous statements by a witness in the form of reports or notes are often turned over to defense counsel only shortly before a witness testifies. Most often, the first time you see a witness is when he begins his direct proof. That’s why it infuriates me when I see a government prosecutor, already with the deck stacked in his favor, withhold material that has been specifically requested by the defense and that might have allowed for an effective confrontation. It is my sincere hope that the Fifth Circuit uses this opportunity to send a message to prosecutors that this sort of abuse of the Sixth Amendment’s guarantee of effective confrontation will not be tolerated. I told Associated Press reporter Juan Lozano just that when he called to get my take on this.

For incisive, in-depth coverage of this issue, I highly recommend the blogs of Ellen Podgor and Tom Kirkendall. CR