Prosecutorial Misconduct--Enron

Ken Lay, Jeffrey Skilling, and Richard Causey have filed a motion to dismiss with prejudice the criminal case against them “on the ground that the Enron Task Force has engaged in deliberate, systematic prosecutorial misconduct that has irreparably harmed defendants’ ability to prepare for trial and present a defense.”^[1] The motion alleges that the Enron Task Force [hereinafter ETF] has prevented the defendants from meeting with witnesses in a number of ways.^[2]

The Motion comes after a May 27, 2005 hearing in which Judge Lake signed an Order advising potential witnesses that it is “entirely up to the witness” whether to meet with the defendants and that the government is not allowed to view such contact as a lack of cooperation or as a basis “for decisions regarding prosecution.”^[3]

One way the ETF has allegedly prevented the defendants from meeting with witnesses is through intimidation.^[4] One potential witness was told to have his lawyer stop talking to Mr. Skilling’s lawyer or “get rid of him.”^[5] Another potential witness, while being interviewed by the ETF, was asked whether he had been talking to Mr. Skilling’s or Mr. Lay’s lawyers.^[6] When he responded that he had tried unsuccessfully to do so, the ETF told him “You don’t want to talk to those guys. They are bad news,” which was interpreted “as a threat not to meet with defense counsel or in any way assist them absent reprisals.”^[7] The Motion recounts a number of other examples where witnesses have allegedly been intimidated by the ETF.

As the Motion points out, access to witnesses is a right guaranteed by the US Constitution. The Sixth Amendment mandates that a criminal defendant has the right “to have compulsory process for obtaining witnesses in his favor.” However, “more than the mere absence of testimony is necessary to establish a violation of the right.”^[8] The defendant must show that the witness’s testimony “would have been both material and favorable to his defense.”^[9] Indeed, the Federal Rules of Criminal Procedure embody this holding by mandating a witness be subpoenaed in the case of an indigent only “if the defendant shows … the necessity of the witness’s presence for an adequate defense.”^[10]

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[1] Defendants’ Joint Motion to Dismiss, at cover sheet, United States v. Causey, No. H-04-25 (S.D. Tex. 2005) [hereinafter Motion], available here.
[2] Id. at 5.
[3] Id. at 6.
[4] Id. at 8.
[5] Id. at 10-11.
[6] Id. at 11-12.
[7] Id. at 12.
[8] United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
[9] Id.; see also Howard v. Walker, 406 F.3d 114, 133 (2d Cir. 2004); United States v. Moussaoui, 365 F.3d 292, 307 (4th Cir. 2004); United States v. Villanueva, 408 F.3d 193, 200 (5th Cir. 2005).
[10] Fed. Rules Crim. Proc. 17(b) (2005). See also Valenzuela-Bernal, at 867 n.7.