Enron Barge Case Update

White Collar Crime Prof Blog has an update on the James A. Brown case (in Re: Nigerian Barges) and it will make you angry:

The latest is that Hon. Werlein denied the defense Speedy Trial Act Motion The defense had claimed that “[s]ince August 13, 2009, the government has failed to take even a first step to bring Brown to trial.”

This case also includes claims of discovery violations on the part of the Enron Task Force, with the defense arguing that “[a]fter Brown’s trial and appeal, a new prosecutor finally produced the government’s notes of multiple conversations with Fastow, the grand jury testimony of Merrill counsel, and other Brady material -all which proves Brown’s innocence on all charges.”

[Note: I deleted the links to the court documents; they remain available at the original source.]

This is shamefully typical of the Enron Task Force and the pro-prosecution judges who are overseeing these important cases. The discovery process has been egregious in all the Enron cases, notably in the Skilling / Lay case when prosecutors refused to turn over the raw Fastow notes. Prosecutors then made the absurd claim that even if the defense had the items, no jury would have been swayed. It is, of course, up to juries to decide the value of evidence, not power-mad prosecutors.

Discovery in the Broadband case, however, was even more outrageous when the government made no credible attempt to preserve the only tangible evidence in the case, the actual EBS software and hardware. The government managed to preserve certain secondary evidence, such as emails, but made no effort to stop the dismantling and sell of the primary evidence, the EBS technology. As an analogy, consider a situation in which a prosector accuses someone of damaging an automobile but then stands idly by while the vehicle is dismantled and disposed of before trial — such a fiasco would be thrown out of court. But in the EBS case, the trial was allowed to proceed.

Tom Kirkendall has made the point that when we shut our eyes to misconduct against unpopular defendants, then we empower the government to use the same tactics against everyone.

Today In Enron History

Today – literally today – February 8, 2010 jury selection and trial was set for former Merrill Lynch executive Daniel Bayly for ridiculous charges related to the Nigerian Barge case. However, on October 27, 2009, the Government filed an unopposed motion to continue the trial date and other deadlines, requesting a May 10, 2010 trial date.

Then, last month, the Government suddenly dropped the case. This seems like such good news. The Enron cases have been a complete bust for the DOJ, and it is likely they didn’t want more egg on their faces. So kudos for them for recognizing that and doing the right thing.

But then they turned around announced they would still try Bayly’s co-defendant, William Furst. This is maddening. William Furst is not guilty of anything at all. The Nigerian Barge deal was a completely kosher deal, and he was not involved any wrong-doing. My heart goes out to William Furst.

Compounding the travesty, there are some similarities to Rex Shelby’s case. Prosecutors seem to have no idea what they’re trying either with the Nigerian Barges or the Broadband case. After ten years, they pursue the defendants until they give up and plead guilty, or they are ultimately defeated. They seem to like the show.