Thoughts on Prosecutorial Abuse

With Eliot Spitzer going down for what shouldn't be a crime (paying for sex) rather than what should be (abuse of power), now is as good a time as ever to focus on prosecutorial abuse.  As in the case of Spitzer, the media seems to have little desire to investigate overly-aggressive prosecution tactics.  In fact, in most cities, the local media cheer-leads abusive law enforcement practices.  It makes heroes of these abusive officials, whether their abuses be against the wealthy (in the case of Spitzer) or the powerless (as is the case of our own Joe Arpaio here in Phoenix).

Tom Kirkendall continues to be on the case of the Enron prosecution team for their abuses, which have been ignored in the media during the general victory dance of putting Jeff Skilling in jail and running Arthur Anderson out of business.  But, guilty or innocent, Skilling increasingly appears to have solid grounds for a new trial.  In particular, the Enron prosecution team seems to have bent over backwards to deny the Skilling team exculpatory evidence.  One such tactic was to file charges against every possible Skilling witness, putting pressure on them not to testify for Skilling.  Another tactic was more traditional - simply refuse to turn over critical documents and destroy those that were the most problematic:

The controversy regarding what Fastow told
prosecutors and FBI agents who were investigating Enron became a big
issue in the Lay-Skilling prosecution when the prosecution took the
unusual step of providing the Lay-Skilling defense team a "composite
summary" of the Form 302 ("302's") interview reports that federal
agents prepared in connection with their interviews of Fastow. Those
composites claimed that the Fastow interviews provided no exculpatory
information for the Lay-Skilling defense, even though Fastow's later
testimony at trial indicated all sorts of inconsistencies

I have spoken with several former federal prosecutors about this issue
and all believe that the government has a big problem in the Skilling
case on the way in which the information from the Fastow interviews was
provided to the Lay-Skilling defense team. None of these former
prosecutors ever prepared a composite 302 in one of their cases or ever
used such a composite in one of their cases. The process of taking all
the Fastow interview notes or draft 302's and creating a composite is
offensive in that it allowed the prosecution to mask inconsistencies
and changing stories that Fastow told investigators as he negotiated a
better plea deal from the prosecutors. 

the Enron Task Force's apparent destruction of all drafts of the
individual 302s of the Fastow interviews in connection with preparing
the final composite is equally troubling. Traditionally, federal agents
maintain their rough notes and destroy draft 302s. However, in regard
to the Fastow interviews, my sense is that the draft 302s were not
drafts in the traditional sense. They were probably finished 302's that
were deemed "drafts" when the Enron Task Force decided to prepare a
composite summary of the 302's.

Note that showing how a person's story has changed over time is a key prosecution tactic, but one that is being illegally denied to Skilling.  Apparently Skilling's team has now seen the actual interview notes, and believe they have found "a sledgehammer that destroys Fastow's testimony" against Skilling.  Stay tuned, a new trial may be on the horizon.


  1. Dan:

    Let me just say that as a non-Libertarian in most respects, I agree with you when you say prostitution shouldn't be a crime. There's obviously a need for this service, and the profession isn't necessarily degrading to women. What it is, unfortunately, due to its illegal status, is dangerous for the women who practice it. If the industry became legal, I think there'd be far less of the "back alley" type encounters in which women are at risk of danger, and far more above-board type of encounters in which cleanliness and safety would be far better. I'm thinking of the prostitution industry in Nevada, which is legal and regulated. Sex workers there are required to be checked regularly for STDs - a positive for both them and their clients.

  2. Ron Good:

    I wouldn't be at all surprised to see a similar result play out in the Conrad Black trial.

    That, also, was a grandstanding political "show trial".

    Just sayin'...

  3. terrence:

    I am indifferent as to whether or not prostitution should be legalized.

    However, the problem I, and many others, have with the ugly hypocrite Spitzer, is that he ENFORCED prostitution laws against others, including prostitutes. Apparently, most New Yorkers are disgusted with his hypocritical behavior.

    It seems clear now that Spitzer indulged in this ugly hypocritical behavior for six to 10 years, while he was actually persecuting prostitute related cases while frequenting prostitutes. And, he may have spent around $80,000 on his prostitutes. And he did this in very stupid ways; his name became known in a money laundering investigation. Spitzer’s using prostitutes is almost a side issue.

  4. GU:

    The cases of the Enron prosecution team, or Nifong and the Duke LAX fiasco, are good tests of who is really serious about stamping out prosecutorial misconduct and who really just cares about their own particular narrow interest group. What I mean is, many people who are concerned that poor and/or black people get railroaded by prosecutors fairly often, don't care that prosecutors are abusing power to prosecute people they don't like, namely successful white males.

    I hate putting things in such racialized terms, but that is the reality of the world we live in. Successful white males being taken down by the government plays into the gender/race/class worldview in which successful white men are only successful because they are evil and oppress women and minorities. We can see who really dislikes prosecutorial misconduct (for non-bigoted reasons) by presenting these types of cases where the defendants are "less sympathetic".

  5. Ron Good:

    Well, it's not just rich white males. Those guys have their guns set on rich white women, too: Leona Helmsley and Martha Stewart jump to mind. Show trials, both of 'em.

  6. Ron Good:

    Yeah, you're right, occasionally they break from the race/gender/class analysis and ignore one (or rarely two) of the criteria. As long as the defendant is not "sympathetic" it is OK to run roughshod on justice.

  7. GU:

    The last comment at 4:31 was posted by me, GU. I don't know why it came up as Ron Good. Apologies to Ron Good.

  8. Ron Good:

    Apology happily accepted, GU--and the link goes to your email anyways :-)