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So When Does The Government Present Its Case?

As I have researched the Enron Broadband Services (EBS) case, I have discovered that many of the defendants and defense attorneys had a great sense of humor. I have already pointed out in other posts a number of the funny lines from attorneys that I found in the EBS trial transcripts. Here is a funny (and serious) story involving EBS defendant, Rex Shelby.

At a criminal trial, the prosecutors present their case first — this is the big chance for the prosecutors to make their case. The prosecutors call their witnesses to the stand and try to develop their “theory” of the case in a way that will convince the jurors that their version of events is believable and that the defendants are guilty of crimes. As each prosecution witnesses takes the stand, they are first questioned by the prosecutors, and then cross-examined by the defense attorneys. After the prosecutors have called and questioned all their witnesses, they “rest their case”. At that point, the defense team gets to call their witnesses and present the defendant’s case.

Well, by all accounts, the prosecutors did a miserable job of presenting their case during the EBS trial. It is not that the prosecutors were incompetent — indeed, they were the best attorneys the Department of Justice could round up. The problem was simply that the prosecutors had no case in the first place. The prosecution witnesses were heavily coached, and their interactions with the prosecutors had been totally scripted. The extent of the coaching became obvious when the prosecution witnesses were cross-examined by the defense attorneys. The testimony of the prosecution witnesses, so laboriously constructed and coached by the prosecutors, fell apart under questioning by the defense attorneys. It was not that the defense attorneys were aggressive or hostile with the witnesses — to the contrary, the defense attorneys were more cordial than the prosecutors. The problem was that the prosecutors had constructed a house-of-cards version of events at EBS which collapsed under even the most basic cross-examination.

This situation led to the funny line by Rex Shelby. Immediately after the lead federal prosecutor, Ben Campbell, rose to his feet and announced to the judge, “Your Honor, the Government rests its case,” defendant Rex Shelby turned to his attorney, Ed Tomko, and (sardonically) asked, “So tell me again … when does the government present its case?”

The defense attorneys agreed with Rex’s observation that the prosecutors had completely failed to meet their burden of proof — there was not simply reasonable doubt of the defendants’ guilt — there was doubt that the government even had any basis for indicting the defendants in the first place! Ironically, the defense attorneys’ success at cross-examining the prosecution witnesses presented them with a difficult tactical decision. The defense team now had a good option to rest the defense case quickly, either without presenting any witnesses at all or perhaps by limiting their witnesses to only the EBS defendants themselves.

In a world in which attorneys could be confident that jurors had no biases and that they understood the principles of “burden of proof” and “reasonable doubt”, the decision would have been easy for the defense team — it was obvious that, in the legal sense, the government had totally failed to meet their burden. However, the defense team knew that the jurors came to the trial with huge anti-Enron biases — therefore, they believed that, at a minimum, the jurors must see the defendants on the stand, answering questions. As a result, the defense team did present their case by calling defense witnesses, including all five of the EBS defendants.

In the end, Rex Shelby had called it right — even given the overwhelming anti-Enron hysteria at the time of the trial, so dismal had the prosecutors’ case been that they got zero convictions after a trial that lasted more than three months and cost the taxpayers tens of millions of dollars. And after all my research on EBS, I still agree with Rex’s observation — I still wonder what kind of case the prosecutors thought they had in the first place, because the case the government presented at the EBS trial makes no sense!

Cara Ellison

One Comment

  1. They knew from the start that they had no case. They were ordered to go to trial in what they knew would be a kangaroo court. The hope was that the media-hyped Enron Hysteria would fan the flames and ultimately burn the defendants at the stake. This was a deliberately staged play intended to soothe citizen outrage and to camouflage the real financial collapse being engineered behind the scenes. Welcome to 2013.

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