Enron Redux

It has never been clear to me what exactly Jeff Skilling and Ken Lay are supposed to have done that was against the law (still less what it was they actually did that was against the law). People tend to be skeptical when I say this, but rarely are able to explain why they are convinced these men deserved to be convicted.

Interestingly, Skilling’s slim chance of getting his conviction reversed may have increased with the recent emergence of evidence that may support his claims that Andrew Fastow, the main (and some would say only) substantive witness against him, changed his story over time in an attempt to negotiate a better deal with the government, and that the government hid from the defense not only exculpatory statements made by Fastow early in the process, but also evidence suggesting that the government induced him to change his story.

As recounted in a brief filed in a related case here, it turns out that rather than keep individual interview notes (so-called “302’s”) for each of the countless FBI interviews of Fastow that took place over 18 months, the government departed from FBI policy and instead compiled a single composite 200-page 302 for the entire process, and apparently destroyed all of the individual 302’s created after the individual interviews and all drafts of the composite 302. Needless to say, a composite document would be very handy if one were trying to smooth over inconsistencies between Fastow’s earlier and later statements. Also needless to say, the government has fought tooth and nail to avoid producing to the defense the underlying notes created by FBI agents during the interviews.

Surprisingly, the Fifth Circuit, which is hearing Skillings appeal, and which is not known for championing defendants’ rights, ordered the government to produce the raw notes. The government refused, claiming, improbably, that the court did not really mean the notes had to be produced. The Fifth Circuit then issued an order clarifying that it did in fact mean that the notes had to be produced. The government then filed a motion for reconsideration, which was finally denied in late December. I have not been able to ascertain whether the notes have finally been turned over, in part because this story has been entirely absent from the national news.