Obviously, we can expect that the government will take issue with the contents of the Skilling brief (for the brief see here).  The brief even states that when questioned with a discovery issue the

"Task Force merely reverted to its blanket assertion that the ‘notes are "not materially inconsistent" with information already in your possession."

But there is an important question that goes beyond the Skilling case, and even beyond the cases such as the Nigerian Barge cases, that are implicated by the Fastow notes.  That question is — how much discovery should prosecutors give to defense counsel.

Clearly in cases where individuals can be injured, there is a need to make certain that the discovery will not result in the commission of additional crimes.  But what is oftentimes a problem seen in drug cases, is seldom a concern in a white collar case.

So why shouldn’t the government give all materials to the defense in a white collar case. This is an important question and my answer would be that the government should provide complete and full discovery in white collar cases, unless they can show to a court that the release of the information will have a detrimental effect on a pending case or will be physically harmful to an individual.   And in situations when there are these possible ramifications, the court needs to find a way to allow defense counsel needed information so that the accused is not deprived of his or her due process rights.

The easiest way for the government to protect the record and case is to provide everything to defense counsel, and in some jurisdictions we find expansive discovery practices for just this reason.  Providing this information not only protects the record and the case, but also serves a judicial economy in that having the information may provide earlier pleas.  After all – if the accused sees that the evidence is there to convict him or her, there is a desire to find a lighter sentence through a plea.  On the other hand, providing selected materials opens the prosecutor to claims that exculpatory material was not disclosed.  Even the best of prosecutors, with the best of motives, may not know the direction of the defense and therefore not be able to ascertain the importance of certain documentation.  Providing everything precludes this later argument of non-disclosure, and precludes the risk of a claim of a Brady violation.   

The Skilling brief highlights the need to provide all notes, even the raw ones, to the defense pre-trial. From the prosecutor’s perspective -why risk a retrial, and if you give everything the plea may add an economic benefit.  And more importantly, trials demand fairness.  The stakes are high and sending an innocent person to jail should be avoided at all costs.  The best way to prevent this from happening is to provide full and complete discovery.  The faults of the existing discovery process are not merely claims heard in death cases or ones voiced by the "Innocent Project."  The discovery process also needs to be examined in the context of white collar cases. 

(esp)

Addendum – See Austin Criminal Defense Lawyer here.

The first card in the falling of the government’s house of Enron cases occurred yesterday, as Jeffrey Skilling’s supplemental brief was unsealed. And one finds within this brief a shocking display of alleged government misconduct. The brief and some commentary can be found over at Tom Kirkendall’s Houston ClearThinkers here. For openers, here is but one example of what can be found in the introduction in the brief.  Commentary on this brief will follow in later posts.

Task Force prosecutors called the "Global Galactic"document "three pages of lies" and the "most incriminating document" in Skilling’s entire case. Op.Br.196; R:36538-39. At trial, Fastow testified Skilling knew about Global Galactic because Fastow "confirmed" it with him during a spring 2001 meeting. Skilling denied knowing anything about Global Galactic. Op.Br.32-36. To bolster Fastow’s testimony and impeach Skilling’s, the Task Force introduced a set of handwritten "talking points" that Fastow said he prepared in anticipation of his meeting with Skilling. R:22287-88. At trial, Fastow swore he "went over" the talking points with Skilling, including the crucial point "Confirmation of Global Galactic list." Id. In closing, the Task Force relied heavily on this document to corroborate Fastow’s testimony that he discussed Global Galactic with Skilling. Id.

The raw notes of Fastow’s interviews directly impeach Fastow’s testimony and the Task Force’s closing arguments.  When shown and asked about the talking-points document in his pr-trial interview, Fastow told the Task Force he "doesn’t think [he] discussed list w/ JS." AE-27-381. (footnote omitted).

This obviously exculpatory statement was not included in the Task Force’s "composite" Fastow 302s given to Skilling.  Nor was it included in the "Fastow Binders" the Task Force assembled for the district court’s in camera review of the raw notes.

See also Houston Chronicle here.

(esp)

Addendum – Larry Ribstein’s Ideoblog here; the Wall Street Jrl here

Kristen Hays of the Houston Chronicle’s article, Skilling Seeks to Use Fastow Notes As Part of Appeal and Tom Kirkendall’s Houston ClearThinkers (here) discuss the recent happenings in the Skilling appeal. If it is shown that the government failed to disclose exculpatory material to the defense in the Skilling case, it could prove enormously detrimental to the government’s ability to have the conviction affirmed on appeal.  Because Andrew Fastow played a crucial role in the government’s case, items within the government’s possession that they may have failed to provide to defense counsel may send this case in a whole new direction. The question remains as to whether the Fastow Notes will be the card that causes the house of cards (this time the government prosecution of Enron cases) to start falling. (see here and here)

(esp)

Tom Kirkendall, over at Houston ClearThinkers, has landed on some interesting court entries in the Jeff Skilling matter. (see here) And yes, we both are wondering if this development is in some way tied into the Fastow Notes (see here).

(esp)

Check out the Enron Related Cases Here-

WSJ – Jess Bravin & Mark H. Anderson, Justices Rebuff Enron Holders

Chicago Tribune (AP) – Supreme Court Refuses to Review Enron Investors’ Lawsuit

But Stoneridge did have influence in another case, unrelated to Enron, as the Court in Avis Budget Group, Inc., et. al. v. Ca. State Teachers’ Retirement granted a petition for a writ of certiorari vacating the judgment and remanding the case to the U.S. Court of Appeals for the 9th Circuit "for further consideration in light of" Stoneridge. (see here)

(esp)

As noted by Tom Kirkendall here, the Fifth Circuit has ordered that the Enron Task Force notes regarding Andrew Fastow need to be turned over to defense counsel. This order was initially made in the Jeff Skilling case and now has also been included in the Nigerian Barge case (see here).  The bottom line is that the Fifth Circuit, as it should, is going to allow defense counsel the opportunity to see these notes. Some observations here:

• This could be the straw that breaks the back of the Enron Task Force. If the notes include exclupatory material that was not turned over to the defense counsel in these cases, it could prove important in Jeff Skilling’s appeal. Even with a harmless error standard, Fastow was a key witness in this trial and exculpatory material regarding him should have been disclosed.  On the other hand, if there is no smoking gun here, the credibility of the Task Force may be heightened.
• Skilling’s reply brief alleges the destruction of exculpatory material (Reply, p. 133).   It certainly seems ironic that prosecutors who proceeded against Arthur Andersen for alleged destruction of evidence, might possibly have destroyed anything considering the high stakes involved in this case.  Obviously, the merit of this argument needs resolution.
• Fastow’s plea agreement for 10 years, but eventual sentence to 6 years raises some eyebrows.(see here)  Will the notes present evidence of a sidedeal?
• Why were the prosecutors objecting so strenously to this disclosure of the notes?  If there is nothing here, then it shouldn’t be a problem for defense counsel to see these items.  Or is that not the case? 

(esp)

Addendum – The Orders are:

Download 11107_order.pdf

Download 112807_order.pdf

Download 122007_order.pdf

The Skilling Reply Brief is lengthy as noted here, although not as long as defense counsel would have liked. Their opening line in the Statement of Facts is that "[s]pace limitations preclude a full recitation of the Task Force’s distortion of the trial record." (emphasis added)  The irony in the opening portion that details some of the alleged discrepancies including a chart showing some of the "task force’s descriptions" along-side a listing of "actual evidence," is that it is followed by the first argument – an argument pertaining to "honest services" fraud. This entry into their first argument is a masterpiece in the art of skillful brief writing.  Some other thoughts:

• The defense does not present a lay back approach to differences in the record.  They call the government on the carpet with forceful words that emphasize their view of inaccuracies in the government recitation of the facts.  As the appellate court decides the law, and the trial court the facts, this may not be as strong an argument as it reads. But it could become important in light of the legal issues being presented.
• This case highlights the problems with the "honest services" doctrine. The dissent in Rybicki noted the different views held by jurisdictions on a host of points related to section 1346 of the fraud statutes. And with the Brown decision within the court’s reach, the government needed to present clear arguments on why Skilling’s case was different. Here again we see an interesting tone in the rhetoric by the defense.  For example, they state in the Reply Brief – "[t]his, to be sure, is nothing more than a call for a ‘Jeff Skilling’ exception to be grafted onto the wire fraud statute." 
• Whichever way the court goes on the honest services issue, it will be an issue that is likely to repeat itself until the Supreme Court provides additional clarification.  The question will be whether this case will serve as the next McNally, a case that reigned in the mail fraud statute when the government used an intangible rights doctrine approach.  Or will it be more like what happened in Carpenter, where the Supreme Court expanded property to include intangible property.  Or will the Court sit back, since after all 1346 was enacted post- McNally by the legislature.   
• The reply brief hits hard on the government response to the giving of the ostrich instruction.
• The materiality and venue arguments get buried in the middle of the brief.  The reality here being that although they were key factors in the conviction, they may be the hardest to demonstrate as legal errors.
• The chart on page 109 of the brief is very telling.  It provides a chart of some high profile cases and the length of the jury selection.  (e.g. Bernie Ebbers – 2 days, I "Scooter" Libby – 4 days, Martha Stewart – 6 days). Uniformity only seems to matter to the Sentencing Commission.
• The "document dump" argument could be a sleeper, although the strong rhetoric at the end of this section is just that – strong rhetoric.
• The brief ends with a request for bail pending appeal.  And although strong arguments are presented here, it doesn’t seem likely that Skilling will be home for holidays.

See also co-blogger Peter Henning’s points from this article by Mary Flood in the Houston Chronicle here and Professor Doug Berman of Sentencing Law & Policy Blog here.

(esp)

Addendum – Check out Tom Kirkendall’s Houston ClearThinker’s here.

Second Addendum – The comment above on the materiality and venue issues should not be interpreted to seem like these aren’t important issues.  They are extremely important ones that the appellate court will need to examine carefully.

In case you need a nice 161-page brief to get you through those colds nights this holiday season, below is Jeffrey Skilling’s reply brief challenging his convictions in the Enron prosecution.  This is the shortest brief filed to this point, less than the 200-page tomes filed by both sides in their initial submissions — but that’s not saying much, is it.  As is often the case when one side gets the final word, this brief takes the gloves off and aggressively attacks the prosecutors on a range of issues.  As I’ve said before, the key issue in Skilling’s appeal is how far the honest services issue will spread from the conspiracy count to other counts, based on the Fifth Circuit’s decision in United States v. Brown limiting the use of that theory in business fraud cases.  Needless to say, there is a lot of detail in those 161 pages, including challenges to the ostrich instruction, the government’s evidence on various counts, and the venue issue. 

Under the Fifth Circuit’s rules, the usual amount of time alloted to each side for oral argument is twenty minutes per side, which hardly allows for a discussion of two issues, much less the myriad of points raised by Skilling.  After the oral argument, an early tip-off about whether the Fifth Circuit is leaning toward reversing the convictions will be whether it grants Skilling bail pending the final disposition of the case.  In the Brown case, shortly after oral argument the court granted bail to the defendants and then issued its opinion reversing the convictions.  Skilling’s brief alludes to its pending request for bail, and his lead appellate lawyer, Walter Dellinger, is sure to renew it after the oral argument. (ph)

Download us_v_skilling_defendant_reply_brief_dec_21_2007.pdf