Doing Justice: Will Skilling Walk In Another Case Of Prosecutorial Abuse?

220px-Jeffrey_Skilling_mug_shotDeptofJusticeThe Justice Department has been repeatedly accused of prosecutorial misconduct in high-profile cases for terrorism cases in Detroit to the botched Ted Stevens case to the recent controversy in New Orleans.  Many such allegations involved federal prosecutors not sharing evidence with defense counsel or the court — a long-standing problem for the Justice Department which shows no signs of reform.  Indeed, prior Justice officials accused of abuse can often look forward to promotion. Now, infamous former Enron CEO Jeffrey Skilling may walk free due to alleged federal prosecutorial abuse.  It would be the end of a multimillion dollar prosecution record of the Enron Task Force that resulted in a number of key acquittals, reversals, and the creation of bad precedent for the Justice Department.

Skilling is serving a 24-year prison term for his role in the energy giant’s collapse after his 2006 conviction of conspiracy, fraud and insider trading. The government pushed for a long sentence and U.S. District Judge Sim Lake committed reversible error in going along with a six year sentence. The Fifth Circuit found Lake’s sentence was abusive and ordered re-sentencing.

Despite the view of many of us that the Justice Department was advancing an unsustainable interpretation of federal law, the task force built the case against Skilling on an “honest services” theory of fraud. This resulted in 2010 in a major loss before the U.S. Supreme Court that ruled that the interpretation was too broad and limiting future prosecutions — adding bad precedent to an already bad record for the task force.

Now Skilling is seeking a new trial and has cited newly discovered evidence. The team has alleged that the Justice Department threatened witnesses not to talk to defense counsel and committed other abuses like withholding evidence. These allegations also included false testimony and a highly controversial media campaign by the task force.

I have been in cases where witnesses have received pressure of this kind from prosecutors. I have also personally seen federal prosecutors withholding evidence in criminal cases that should have been turned over. It is a long-standing signature of the DOJ and routinely resulted in orders to compel disclosure. However, prosecutors are clearly rewarded for such abusive approaches. Then, when such abuses undermine cases, the Justice Department tanks a case to avoid embarrassment for the department or the team. Even if scandals like Stevens, the Justice Department protects prosecutors from discipline in such cases.

With the Skilling deal, the Enron task force will have little to show for its huge costs in both resources and precedent. Yet, again, there will be no discipline or even likely investigation based on this record, including the allegations of abuse.

Source: NBC

20 thoughts on “Doing Justice: Will Skilling Walk In Another Case Of Prosecutorial Abuse?”

  1. “As a criminal defense attorney I am aware of such conduct in state and federal courts. It makes me sick. We criminal defense attorneys must be vigilant and call such actions out in court to protect our clients.”
    -frankmascagniiii

    Here’s to one of the good guys. (Thank you.)

    frankmascagniiii, Thanks for offering up a little hope this Saturday morning. (The clip is perfect.)

  2. It’s a sad day in the criminal justice system with all these allegations of federal prosecutors unethical and unlawful conduct! As a criminal defense attorney I am aware of such conduct in state and federal courts. It makes me sick. We criminal defense attorneys must be vigilant and call such actions out in court to protect our clients. The DOJ must take action to stop these abuses, but history has shown it is slow (if ever) to change. We have to take it on individually, case by case.

    KEEP FOCUSED GRASSHOPPER AND FIGHT THE GOOD FIGHT!

  3. OT, but interesting…

    RFK Assassination Legal Case Update

    By Russ Baker on Apr 5, 2013

    http://whowhatwhy.com/2013/04/05/rfk-assassination-legal-case-update/

    Excerpts:

    Recent legal filings on behalf of Sirhan Sirhan, jailed 45 years ago in the death of Robert F. Kennedy, reveal new evidence suggestive of a larger conspiracy. The filings also enumerate examples of obstructive tactics by a government representative—contortions reminiscent of the Warren Commission’s incredible, acrobatic magic bullet that was essential in creating consensus for a lone wolf assassin in the death of RFK’s elder brother, John. (If you’d like to read those filings, we’ve posted them here and here.)

    Another “Patsy”?

    Sirhan, the man almost everyone believes killed Robert F. Kennedy (and did so alone), is seeking a new trial. Sirhan’s current attorney, William Pepper, who also served as James Earl Ray’s final lawyer and believed that Ray had been set up, is seeking to convince the US District Court for the Central District of California not to accept a report from a magistrate judge, Andrew J. Wistrich, advising that the new trial request be dismissed. It’s up to the district court to decide whether to proceed.

    Although Sirhan pled guilty at his original trial in 1969, Pepper contends that Sirhan was betrayed by a lead member of his original legal team, Grant Cooper, who Pepper notes was himself under federal indictment at the time for illegally possessing grand jury proceedings in another famous case, involving card cheating at the Beverly Hills Friar’s Club. Cooper, who faced possible jail time for that, ended up being let off with a $1000 fine. Intriguingly, his client in the Friar’s affair, John Roselli, was an organized crime figure with CIA ties often named as a possible conspirator in the death of President John F. Kennedy.

    Writes Pepper in his most recent submission:

    Will the [district court] accept the magistrate’s report and quash the request for a new trial? Or will we see a break in the case? As my French colleagues, who have reviewed this file say—Les jeux sont faites. The game is up.

    But is it? The judge handling the case will presumably be under intense pressure not to permit a new trial. Consider the Pandora’s box that could open. If the public were to learn to distrust the official version of yet another assassination that changed the course of American history, where would this all end? Before long, people might wonder what happened to Martin Luther King, to labor leader Walter Reuther, to all of the leading lights that were extinguished one after another in the last century.

    It will take the active interest of the public and the media—and some improbable heroism on the part of the latter—to keep up the pressure until “justice” becomes more than just another word for blind acceptance of the government-sanctioned status quo.

    End of excerpts

    Pandora’s box, indeed.

    (Credit to Mike S. for his postings about Baker.)

  4. Of course with prosecutor immunity, prosecutors know they can withhold evidence and perform other grave abuses. We must end, or at least greatly limit, the concept of prosecutor immunity.

  5. There is no such thing as an honest federal prosecutor They are taught to hide any evidence favorable to the defense and to hide behind archaiac federal rules of evidence which allow the prosecutors to determine what evidence might possibly be exculpatory.Federal prosecutors often fail to reveal any evidence which might somehow point towards the innocence of the accused. The so called Jenks Act allows them to withhold any witness statements of witnesses that they do not choose to call and of course the prosecutors will never call witnesses who do not back their theory of the case, The lesson from all of this is YOU CAN NEVER GET A FAIR TRIAL IN A UNITED STATES FEDERAL COURT Jomo 995

  6. It is a mistake to conclude that the actions of the DOJ are accidents, mistakes, misjudgments, and the like. All legal strategies and methods are carefully conceived and executed. Skilling will go free BECAUSE that’s what the DOJ wanted to happen in the first place. In the real world if someone in an organization–be it in private enterprise, government, or nonprofit sector–does something that produces a bad result, and there is accountability in the organization, that individual will NOT advance in the organization unless there is tacit approval from the VERY TOP of the organization. Period. The DOJ is no different. All DOJ attorneys involved in helping to set Skilling free will be REWARDED with PROMOTIONS, and, more importanly, they will receive lucrative offers from various private sector law firms and other organizations in the wonderful government/private sector REVOLVING DOOR.

  7. ” The team has alleged that the Justice Department threatened witnesses not to talk to defense counsel and committed other abuses”

    I am sure there must be legal technicalities here, but in a fundamental sense isn’t this obstruction of justice, intimidation of a witness?

  8. What Mike S. and raff said but with the stipulation that I don’t think there is much “if” about such actions being criminal on the part of DOJ staffers if true. 18 USC § 1512(b-d) reads:

    “(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
    (1) influence, delay, or prevent the testimony of any person in an official proceeding;
    (2) cause or induce any person to—
    (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
    (B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
    (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
    (D) be absent from an official proceeding to which such person has been summoned by legal process; or
    (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation [1] supervised release,, [1] parole, or release pending judicial proceedings;
    shall be fined under this title or imprisoned not more than 20 years, or both.
    (c) Whoever corruptly—
    (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
    (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
    shall be fined under this title or imprisoned not more than 20 years, or both.
    (d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—
    (1) attending or testifying in an official proceeding;
    (2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation [1] supervised release,, [1] parole, or release pending judicial proceedings;
    (3) arresting or seeking the arrest of another person in connection with a Federal offense; or
    (4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;
    or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.”

    I smell multiple felons and I’m not just talking about the Enron clowns.

  9. If the DOJ did pressure witnesses and did withhold evidence, Skilling should walk. Then those DOJ attorneys and their supervisors should be fired and then prosecuted if their actions amount to a criminal violation.

  10. Steve Fleischer 1, April 5, 2013 at 9:48 am

    While Skilling meets most people’s definition of a “bad man”, we will probably never know what U.S. laws he broke – thanks DOJ.

    Skilling is rich and as a 59 year man facing what amounts to a life sentence, is prepared to spend/do whatever is necessary to regain his freedom.

    What about the rest of us?
    ===========================================
    They are skilling us.

    The notion of the common good was once applied to the public, but now it seems to be distorted to mean the plutocrats.

    Clearly, The Department of Just Us is not helping.

  11. Big picture: It’s hard to articulate cause & effect, but this is also the danger of our post-9/11 lawlessness in our justice system where the Executive Branch alone can effectively play cop, judge, jury and executioner with no real oversight by the federal courts (Judicial Branch). When you change the extreme boundaries of the constitutional rule of law – it affects all other laws in between affecting U.S. citizens as well. Ex: If you can use warrantess wiretaps and warrantless searches on foreigner suspects without probable cause – they also can do the same to U.S. citizens. Their chickens have come home to roost! The ACLU predicted this in October of 2001.

  12. “Skilling is serving a 24-year prison term for his role in the energy giant’s collapse after his 2006 conviction of conspiracy, fraud and insider trading. The government pushed for a long sentence and U.S. District Judge Sim Lake committed reversible error in going along with a six year sentence. The Fifth Circuit found Lake’s sentence was abusive and ordered re-sentencing.”

    This doesn’t make any sense to me. If a 6 year sentence was abusive for being too long, why is he currently serving a 24 year sentence?

  13. Restoring the Justice Department’s integrity and legitimacy should always supersede punishing the “accused”. Most prosecutors are good people but if they cheat they should not be rewarded for doing it. When the “accused” happen to be innocent and prosecutors break the law – the only real crime in the equation that of the prosecutor. The integrity of the American Justice System far outweighs punishing Skilling – they could have gotten him without cheating. Rewarding prosecutorial law breaking and abuse will only create incentives for future prosecutorial msiconduct. They should lose!

  14. “The team has alleged that the Justice Department threatened witnesses not to talk to defense counsel and committed other abuses like withholding evidence. These allegations also included false testimony and a highly controversial media campaign by the task force.”

    If the allegations are true, a not unreasonable thought given DOJ history, they continue to represent a pattern of DOJ arrogance that deems them above the laws they are charged to enforce. One of the symptoms of the collapse of our Justice System today is prosecutorial misconduct on so many levels, in so many ways.

  15. While Skilling meets most people’s definition of a “bad man”, we will probably never know what U.S. laws he broke – thanks DOJ.

    Skilling is rich and as a 59 year man facing what amounts to a life sentence, is prepared to spend/do whatever is necessary to regain his freedom.

    What about the rest of us?

    Those of us without millions for legal defense or who do not attract the attention of those few dedicated lawyers willing to take a pro bono case are screwed.

    The DOJ does not prosecute for justice; it persecutes individuals when a public assault makes political sense.

    I also fault the judges. They are supposed to be impartial overseers of the justice system. Far too few of them handle their responsibilities with integrity.

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