Wednesday, March 12, 2008
Internal controls: What is good for the corporate goose is apparently not important for the government gander
Tom Kirkendall, who has been following the ins-and-outs of the Enron prosecution lo these many years, believes he has identified an example of the government behaving badly:
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.
However, 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.
Similarly, 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.
I'm not a prosecutor and I do not know what a "Form 302" is, other than by inference from this post. Presumably, that is because I have led a sufficiently charmed life that I have never needed to know what one was, for which I shall thank the dear Lord early and often.
I do, however, know this: Prosecutors -- along with the curiously silent media -- are the first people to scream bloody murder if some bureaucratic corporation even accidentally deletes an email or pitches a Post-It Note with some scribble on it in the midst of litigation. In light of the regulatory fetish for the maintenance of corporate "internal controls" since Enron, is not the destruction of the source material in this case all of ironic, apparently improper, and absolutely hypocritical? Are there any more knowledgeable lawyers out there who want to take the other side?
CWCID: Coyote.
1 Comments:
By 
, at
Wed Mar 12, 03:16:00 PM:
I was a trial lawyer for more than 40 years. I am reminded, somehow, of the efforts of Jim St. Claire, the noted lawyer from the firm of Hale & Dorr in Boston, who represented Richard Nixon in connection with the Watergate scandal and who tried, in 1973-1974, without success, to foist off on the public his summaries of the White House tapes rather than produce the originals which contained much damaging conversation. Neither exercise passes the smell test as far as I am concerned.
