This week, former Enron Corporation CFO Andrew Fastow was sentenced to six years in prison on conspiracy charges. Roughly one month shy of the sentencing of ex-CEO Jeff Skilling, scheduled to take place on Oct. 23, this Enron junkie wonders how the former chief executive officer will fare.

The outlook isn’t good for the disgraced former executive. In a trial alongside former Enron Chairman Kenneth Lay, Skilling was convicted in May of 19 counts of conspiracy, fraud, false statements and insider trading. Unlike Fastow, whose cooperation with the Justice Department allowed him to plea bargain down to a very minimal sentence, Skilling is likely to face a lengthy prison term.

Although many were overjoyed to see the former executives get their just desserts, I remain largely skeptical of the case built by the Justice Department’s Enron Task Force. Even the Task Force seemed surprised to have pulled off such a victory. The tactics used by the prosecution were occasionally suspect and unnecessarily stifling for the defense’s legal teams.

There is, of course, still a slim hope from the Skilling team that an appeal will be granted for their client. Although some legal experts have ruled out the likelihood, I find that there is merit in appeal.

It seemed that from the trial’s inception the odds were against defendants Jeff Skilling and Kenneth Lay . District Court Judge Simeon Lake, who presided over the case, rejected an early plea from the Skilling and Lay legal teams to change the location of the trial. Houston, the defense argued, would not serve as a fair venue for the defendants – jury selection was likely to be an arduous process. Home to the now empty headquarters of the former energy giant, Houston was saturated with negative pre-trial publicity from much of the community. The plea was denied by Judge Lake and the trial plowed ahead. This issue will likely continue to be a point of contention for the Skilling legal team in their quest for an appeal.

Both in the pre-trial period and during its progression, the Skilling and Lay camps accused the Enron Task Force of intimidating witnesses who may have otherwise provided exculpatory evidence for the defense. For the former Enron executives who were to be called as witnesses, the threat of indictment surely would have been a deterrent. Judge Lake denied the defendants’ request to grant immunity to proposed witnesses.

The Enron Task Force employed one particularly damning tactic in the duration of the trial – the naming of “unindicted co-conspirators.” Although not altogether uncommon in practice, the scope of the list was unusually vast. It covered virtually all bases for the defense – roughly one hundred names were included on this sealed list.

This designation allowed the Task Force to submit statements and hearsay evidence from witnesses without calling them to the stand, effectively preventing the defense from cross-examining. Without the ability to confront adverse witnesses, the Skilling team could argue for their disadvantage.

Judge Lake’s instructions to the jurors are also likely to come under fire. Lake instructed jurors of their ability to convict defendants Skilling and Lay under the legal concept of “willful blindness” – that the executives intentionally ignored any presence of fraud to eliminate their own liability.

This directive seemed to contradict the very presumptions of the prosecution, which set out to prove the former executives’ compliancy in a massive conspiracy. Skilling, the Task Force asserted, was fully aware of his role within this conspiracy. This issue is likely to be at the crux of Skilling’s request for an appeal.

It seemed that credibility of the Task Force was quite minimal in this case and was somewhat of an embarrassment for the Justice Department. I’m holding out hope that true justice can still be served if an appeal is granted – not just for jilted former Enron employees, but also for Jeff Skilling.

Pomaranski can be reached at pomaranski@campustimes.org.



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