In researching an upcoming post about Brady violations in Jeffrey Skilling’s trial, I ran across an interesting tidbit.

An MBA student at Cornell named Kristine De Bacco posted a review of sorts of lead Enron prosecutor John Hueston’s speech to her school, where he brags about what a difficult job he had in obtaining the convictions…not because public sentiment was with the defendants, but because it was against them:

[I]n fact, prior to the commencement of the trial, Lay and Skilling had already been convicted in the court of public opinion. To the average person on the street, their guilt seemed a foregone conclusion.

From Mr. Hueston’s perspective, however, this made the job of the Enron prosecutors much more difficult. They were expected to win.

Hogwash. Any federal or state prosecutor loves the presumption of guilt. Simply a case of a guy trying to convince folks out there that his job was harder than it really was.

It’s disappointing that no critical thought is put into analyzing this assertion from the former prosecutor. How is it exactly that going into trial with a jury pool that already believes the Government’s case before they have heard it could be harmful to the prosecution?

There may be more pressure on a prosecutor when he is “expected to win”; but when that expectation arises from a playing field tilted in his favor, it’s not a disadvantage.

For example, it might be embarrassing for a number one seed in the NCAA’s to lose in the first round to a small school overmatched opponent that barely scraped their way into the tourney, but it doesn’t change them from favorite to underdog. (And if it did, wouldn’t the 16th seed suddenly become “expected to win”… rinse and repeat?)

Another excerpt about the speech:

Mr. Hueston and his team had been especially concerned that there were few, if any, documents linking Lay and Skilling directly to the fraud – no perfect "smoking gun" to wave in front of the jury.

So, in order to establish guilt beyond a reasonable doubt, Mr. Hueston and his team employed a number of alternate strategies.

Yeah? Looks like one of those alternate strategies may have involved deliberately not turning over impeachment material from the original Fastow interview notes, and either minimizing or deleting them from the 302s turned over to the defense.

More on this coming soon.

  • Hi, I’m from Georgia, and unfortunately hard to write in English, that there is no pity in different languages versions of the site – interesting to read …

  • In Los Angeles where I practice the prosecutors try in many ways to eliminate the presumption of innocence. There needs to be better training in prosecutor school to deal with this problem.