Tuesday, June 24, 2014

“It is not necessary to accept everything as true, one must only accept it as necessary.” - From The Trial by Franz Kafka

This story might have been sub-titled The Godfather IV, despite the probable copyright issues. In the 1974 Academy Award Winning movie The Godfather II, the US Senate is investigating the Corleone crime family.  Michael Corleone (Al Pacino) and his family are the subject of a Senate committee probe. Frank Pentangeli (Michael Gazzo), a former member of the Corleone family, has taken the stand to spill the beans about the Corleone’s criminal empire. Just then he notices that his brother (from Sicily) is sitting in the gallery, next to the Don. The threat is obvious; if Pentangeli cooperates with the government, his brother is dead.  

Fast forward to the early 2000’s after the bankruptcy of Enron and the Department of Injustice (I refuse to use the term “Justice” until they clean up their act) is prosecuting  Arthur Andersen, one Andersen partner, and executives of Merrill Lynch, NatWest and of course Enron (in what I refer to as The Godfather Part IV).  In the latest Godfather episode, the US Department of Injustice (DOI) is prosecuting former executives over the course of almost a decade in the Southern District of Texas, Houston, rather than before a US a Senate committee. And the DOI borrows a trick or two from Michael Corleone.

Of course one might ask how any of these defendants could possibly get a fair trial in a town as collectively pissed off as Houston? But fair trials were not a priority for the DOI or the Houston federal court system.

The DOI didn’t bring any long lost brothers to the courtroom. But their threat was nearly as terrifying—a federal indictment. An indictment is serious because the potential prison time is almost always decades, and the cost of paying for a legal defense will drain your last dollar (unless you are far richer than the average defendant or were one of the few defendants whose company would foot the bill). It was easy to envision that if you were indicted you would waste away in federal prison while your family had to move in with your in-laws. Even if you prevailed in court, your name would be ruined. And it would be impossible to earn a living while you worked overtime with your legal team on your underdog defense while no witness would speak to you for fear of being indicted and the prosecutors claimed they had no evidence favorable to your defense. 

In the case of the Enron Broadband trial, one of the defense witnesses that refused to be intimidated was Larry Ciscon (a real hero from my perspective). The prosecutors telephoned Ciscon three times the night before he was scheduled to testify to remind him that if he did testify, he would be indicted. Lucky for him it was a bluff.  This threat would be judged as witness tampering if made by the mafia but for some crazy reason it is an intimidation tactic often used by federal prosecutors today—even when they have no intention of indicting someone. 

An indictment meant a minimum of a half million dollars in legal fees (for the defendant) and if the prosecution went full-course through trial, a legal defense probably cost at least $5 million. And you knew that the prosecution would charge you with everything under the sun and threaten any witnesses that might vouch for you. In the case of former Enron Treasurer, Ben Glison, who plead guilty without agreeing to testify against others, they threw him in solitary confinement until he decided to “cooperate” with the DOI. Cooperation meant telling the prosecutors what they wanted to hear—consistent with their “view” of the “facts.” Any contrary view was met with threats of indictment for perjury, false statements, and obstruction of justice. They made good on enough of those threats to make a believer out of everyone.

In The Godfather II, the mafia threatened the witness, and it worked for the Corleones. In Houston this witness tampering worked for the DOI.

But witness tampering was only a small part of the DOI’s playbook of dirty tricks. The crime the prosecutors most consistently violated was hiding evidence from the defense, lying about it to the court, lying about it the legal defense team, and most importantly lying about it to the jury. The irony is that in Jim Brown’s case (the main protagonist of Licensed to Lie), one of the charges against him was perjury. I am yet to see any evidence that Jim Brown lied. But the prosecution clearly lied many times trying to convict this innocent man.

And when the unethical prosecution got caught lying, they ended up losing many of the cases and most of the charges. But the prosecutors never suffered any criminal prosecution themselves. In Jim Brown’s case, not only were the prosecutors never indicted (by their buddies at the DOI), they were promoted—to White House Counsel, General Counsel/Deputy Director of the FBI, and Acting Attorney General for the Criminal Division. The state bars refused to even investigate their wrongdoings. “Scott free” is the technical legal term for how these corrupt zealots (i.e. prosecutors) got away with these crimes.  According to the Urbandictionary.com, Scott Free means “to completely get away with something, like murder.”

The story that author Sidney Powell lays out is so riveting that it not only reminded me of the Godfather series, but also harkens back to a combination of John Grisham characters—ham-fisted judges and unethical and politically ambitious prosecutors. Unfortunately in many of these Enron-related cases, the federal appeals system was inconsistent and did little to reign in the DOI and the pliant district court judges.

Sidney Powell showed tremendous courage writing Licensed to Lie. Now it is time for America’s federal trial system to stop condoning this organized crime by the DOI. The DOI might, at times, have slightly better motives than Don Corleone, but their unethical methods are just as frightening and completely unacceptable for those who swore to uphold the Constitution, and who are entrusted with such power.

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