Defense lawyers for former Enron Corp. executives Kenneth L. Lay and Jeffrey K. Skilling have complained for years about the government's hard-nosed tactics in pursuit of their clients.
Now they are hoping for support from an unlikely source: the federal judge overseeing next year's fraud trial against the two.
U.S. District Judge Simeon T. Lake III has scheduled a hearing in Houston for tomorrow to examine why only four former Enron employees have agreed to meet with the defense team. The judge has raised the prospect, employed in other cases, that he could privately inform a limited number of potential witnesses that they have nothing to fear by speaking with Lay's and Skilling's lawyers.
The judge's action comes in response to defense claims, made public yesterday in court filings, that prosecutors abused their power by warning Enron employees that it was not a "good idea" to help Skilling and Lay. A government lawyer also advised a critical, unidentified witness to "get rid" of his or her lawyer if the lawyer continued to talk with the defense, the brief said.
A grand jury continues to investigate misconduct at Enron, and prosecutors have said in court papers that they consider 114 people "unindicted co-conspirators."
Lake has not ruled that prosecutors at the Justice Department's Enron Task Force acted improperly. Even so, the judge said last week, Lay and Skilling had identified "a problem I am persuaded exists" in advance of a trial only four months away.
"Both sides have to have access to witnesses in order to try a case," Michael Ramsey, a defense lawyer for Lay, said in a telephone interview.
Daniel M. Petrocelli, Skilling's lead trial counsel, told the judge at a hearing in May: "There's hundreds of witnesses, and we can't get to anybody, and we need some relief."
Nearly three dozen former employees and those who did business with them have been charged with crimes in the Enron investigation. Several key figures, including finance chief Andrew S. Fastow and investor relations director Mark E. Koenig, pleaded guilty and agreed to testify against their former superiors.
The clash over access to witnesses is merely the first in a series of battles for control of the courtroom, the media and potential jurors who will be selected in January, experts said.
"As a general matter, witnesses refusing to talk to the defense is a huge problem," said Barry Boss, a partner at Cozen O'Connor LLP in the District who is not involved in the Enron case.
Unlike in civil cases, defendants who are charged with crimes do not automatically receive copies of written statements and information that witnesses provide to the government.
"The defense really doesn't have any clout" to force people to talk, said Stephen A. Saltzburg, a George Washington University law professor. Such concerns are increasingly common in sophisticated cases, he said. Defense lawyers for former WorldCom Inc. chief executive Bernard J. Ebbers cited similar problems as a basis for an appeal of his conviction for fraud and making false statements.
Lay, Skilling and former chief accountant Richard A. Causey, who is on trial with them, do have some guidance about the evidence marshaled against them -- in part because of the vast impact of Enron's 2001 collapse. The company's bankruptcy examiner filed several weighty reports citing e-mail messages and other documents. Congressional reports flagged other materials the government may use in its prosecution. And depositions of witnesses continue in shareholder lawsuits against Enron executives.
Defense lawyers for Skilling and Lay, however, say that 56 witnesses have invoked their constitutional rights against self-incrimination in connection with the civil case. Prosecutors have sought to postpone depositions of others, including Sherron Watkins, who sent Lay an anonymous letter in 2001 warning him that the company could implode in a wave of accounting fraud.
The Justice Department filed a motion late yesterday calling the defense brief "inflammatory."
"The government respects the right of any witness to meet or not meet with whomever they want," Justice Department spokesman Bryan Sierra said. "The majority of witnesses in this case are represented by experienced counsel who are in the best position to advise them on whether to meet with the government or defense counsel."
Former Enron chief executive Kenneth L. Lay faces a fraud trial next year.