Does the latest appeal by former Enron CEO Jeffrey Skilling to overturn his May 2006 conviction stand a chance? It depends on who you ask, but the proceedings scheduled for April 2 in New Orleans before a three-judge panel in the Court of Appeals for the Fifth Circuit are sure to be lively. The big question to be argued: Did prosecutors mishandle key evidence before Skilling’s trial?
Earlier this month Skilling’s legal team, led by O’Melveny & Myers’s Daniel Petrocelli, filed a supplemental appeal accusing prosecutors of failing to disclose more than 400 pages of FBI interview notes. The notes allegedly contain contradictory statements from former Enron CFO—and government witness—Andrew Fastow.
“The failure to turn over [Brady v. Maryland] or exculpatory material with respect to Mr. Fastow is extraordinarily serious if it’s true,” says Ira Lee Sorkin, a Dickstein Shapiro partner who defended former Merrill Lynch managing director Robert Furst in the Enron “Nigerian Barge” case. (The Fifth Circuit threw out Furst’s conviction on wire fraud and falsified business records charges in August 2006.)
The prosecutorial misconduct charge is only the latest salvo fired by defense lawyers, who first filed a 239-page appeal last September, alleging several other missteps in the government’s case, including flaws in the jury selection process and in the jury instructions.
The latest charges hinge on the FBI notes, and the court most likely will have to review the documents—a highly unusual move for an appellate court, says Carl Tobias, a professor of law at the University of Richmond.
“It’s just insanity for someone four years down the line to take notes from a preliminary conversation and try to reconstruct precisely what was said,” says a former Justice Department staffer familiar with the case. “If this gets overturned, it would give new meaning to ‘getting off on a technicality.’”
But Enron convictions have been overturned before. The American Lawyer’s litigation supplement from last fall, which reported on the Justice’s Corporate Fraud Task Force, covered several overturned guilty verdicts in both the Enron Broadband and Nigerian Barge trials.