The 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.