Chapter 7: Supreme Reversals
April 27, 2005. Ms. Powell was invited to sit in on the oral argument before the Supreme Court by Maureen Mahoney. Assistant Solicitor General Michael Dreeben argued the case for the government. The Supreme Court included Chief Justice Rehnquist (now deceased), Justices Scalia (now deceased), Kennedy, O’Connor (now retired), Ginsburg, Souter (now retired), Thomas, Breyer, Stevens (now retired).
Maureen presented her argument very succinctly and clearly—that a person cannot be convicted of a crime that doesn’t exist, and that the government, in their handling of the case, had stripped the law of any mens rea or criminal intent, and that they went even farther by stating that “even if the Andersen employees had a good-faith belief that their conduct was lawful, it was still a crime.” She based her argument on the 100+ year old Pettibone rule, “that the destruction and other kinds of acts of potential obstruction in advance of a proceeding were not a crime.”
It became clear to the Justices that the government had stretched a statute (§1512 or witness tampering) to cover shredding documents—fitting a square peg into a round hole—and it wasn’t going to fly. “The DOJ had destroyed an eighty-nine-year-old accounting institution and eliminated 85,000 jobs by distorting the law, denying the defendants a fair trial, and taking intent out of the jury instructions—and all for what purpose?”
“After Andersen’s conduct, Congress had enacted a law (Section 1519) to require the retention of documents, but that just proved that there wasn’t such a law in place at the time. That new law proved the task force was wrong. Prosecutors can’t make up laws, piece laws together, and create new ways of criminalizing business behavior. That power is entrusted only to Congress.”
The Supreme Court Justices were just as aghast at the government’s chutzpa of creating a crime where there wasn’t any. The defending attorneys left the Court in anticipation of a reversal.
On May 31, only five weeks later, the Supreme Court unanimously reversed the Fifth Circuit’s decision, and with it, Judge Harmon’s jury instruction that eliminated criminal intent. At the same time, however, the Fifth Circuit had refused Jim Brown’s appeal for bail pending appeal.
The Fifth Circuit had a record of reaching the correct result on hard facts and doing what the law required regardless of public opinion. So based on the Supreme Court reversal, Ms. Powell applied for a rehearing for Mr. Brown by the Fifth Circuit, confident that the bail pending appeal would be granted.
This shows that, just ten years ago, the Supreme Court was interested in safeguarding the laws of our ancestors. Only four of the justices are still on the court: Kennedy, Ginsburg, Thomas, and Breyer. The problem with getting the Supreme Court to rule on the illegalities of what is happening against doctors is, in my opinion, a case of money. Since the government confiscates everything the doctor owns, he is left stripped of the resources to hire a lawyer. And, as I found out, even though the law-breaking of the Department of Justice needs to be reviewed, they don’t pay any attention to pro se petitions. I spent almost a year doing the research for my petition, and I think I put together a pretty good one. But I was denied a hearing.
Another possibility that I really don’t want to accept is that the Supreme Court has become corrupted also “for the money”. Since that is the point of attacking doctors, and as long as the actions are not ruled unconstitutional or the legislature doesn’t do its job of strengthening the exemption of physicians, these attacks will continue. And as prosecutors win over and over, they are developing an easy track to pass on to other prosecutors, so that it becomes easier to attack physicians. Now the attacks are moving into the states as well.
Chapter 8: The Longest Year
Two weeks later Jim Brown’s son Chris, driving up a Colorado mountain road unable to think straight or sleep well, drove off the mountain road in a massive thunderstorm. At the same time, Jim was given a date to report to prison on July 5. Upon hearing about the wreck and Chris’s status in intensive care, a request was made to extend his report date. The government, in their still unbelievable role as bad guy, only agreed to a 30 day extension.
As is so often the case with innocents who go to prison, Jim made a pledge for his family. “God, if you could just please let Chris live, I promise you I will go to prison with the best attitude I possibly can. I’ll use the time I have to spend there to do good things and try to help everyone I meet. Please, God, please let Chris live. I’ll try not to ever ask for anything else. Amen.”
However, the Fifth Circuit denied the request for bail. They noted that the denial was “not a comment on the merits of the appeals.” Jim had to report to prison on August 5. But Chris was alive and would eventually recover. Jim said that was all that he could ask for. He would deal with prison with a positive attitude.
Back in Houston, the Enron Task Force was on the attack again—the Enron Broadband case.
The purpose of the broadband division was to develop a market in broadband technology—common today but at the cutting edge back then.
The trial was so infected with prosecutorial misconduct that even the pro-prosecution Houston Chronicle began reporting on the problems. The prosecutors elicited false testimony from Ken Rice (who had taken a plea). Two brave defense witnesses, Beth Stier and Lawrence Ciscon, testified that the task force had threatened to indict them if they testified for the defense. Typical for intimidation, they called Ciscon three times the night before his was to testify to remind him that he was “a target”. They also showed a video that the judge had specifically ordered not to be shown, and claimed it was an “accident”. The armor of the “invincible” task force was cracking. While the jury was in deliberation, Andrew Weissmann resigned from the task force on July 18, 2005. Two days later, the jury returned, hung. No one was convicted. The task force announced they would prosecute again. After all, they had the unlimited resources of the taxpayers, and they couldn’t possibly admit that they were wrong.
Back to Jim Brown…
Jim reported to Fort Dix, a low-security but not the camp, prison in New Jersey on August 14. Jim promised his wife Nancy he would take care of himself and not let this ruin his life. They knew the truth—that he had done nothing wrong, and that knowledge, their faith, and their friends would keep them going.
Ms. Powell prepared for her argument to the Fifth Circuit. The four defendants involved were Bayly, Fuhs, Furst, and Brown. She knew the three judges that would sit on the panel, having worked with them before. What she found in the courtroom, however, was abject hostility from the judges who believed the government’s case in spite of the facts being wrong. And there was not enough time to get the facts right. One of the Judges, Judge DeMoss, did get it, however.
In three days, the panel ordered that Fuhs be released on bail. He had spent over 5 months in a maximum security prison in Oklahoma. It looked like he was going to be acquitted. The 5 months were lost from his and his family’s lives. Nothing could ever make up for that. Had the judges ever even considered or cared about what their wrong decision had done to this young man and his family?
Things had begun to unravel. But at the same time, the task force prosecutors were being promoted, honored, and lauded for their work. Leslie Caldwell was heading the practice at Morgan Lewis. Friedrich was climbing the later of the DOJ. Weissman landed a position at Jenner & Block. Ruemmler was prosecuting Lay and Skilling in Houston.