As I have pored over the Enron trial transcripts and other documents, it is shocking how much prosecution witnesses, presumably with the permission and coaching of the federal prosecutors, lied at trial. Indeed, several forms of lying leap out as I study the trials — let me categorize them for you:
1. Outright lie — a witness says something that he knows to be false.
2. Lie by omission — a witness intentionally leaves out information which he knows is relevant to the jury’s understanding of actual events.
3. Lie by false credentials — a witness states a rumor or other non-first hand information as if it was first hand.
4. Lie by misdirection — a witness knowingly leaves the jury with a false impression of the actual events.
Some people may quibble that only Number 1 is the traditional definition of a lie, but all four categories constitute a lie when a witness is on the stand, under oath not to lie, with a defendant’s fate hanging in the balance. Number 1 violates the witness’ obligation to “tell the truth”; Number 2 violates the obligation to “tell the whole truth”; and Numbers 3 and 4 violates the obligation to “tell nothing but the truth”.
As my regular blog readers know, I am immersed in Enron Broadband Services (EBS) research right now. In the EBS trial, there are plenty of examples among the prosecution witnesses of all the above forms of lying:
1. Prosecution witnesses, Bill Collins and John Bloomer, were caught in many outright lies on the stand. Prosecution witness, Shawna Meyer, essentially admitted to outright lying when she recanted much of her EBS criminal trial testimony at a civil deposition just a month after the EBS trial concluded. Some of those witnesses’ lies rise to the level of perjury, in my opinion — but, of course, the Feds do not go after the people who lie for them.
2. Lying by omission was rampant in the EBS case — indeed, I think it is entirely accurate to call it a major element of the core prosecution strategy. Indeed, lying by omission is essentially the core basis for the Feds’ indictment of the EBS defendants.
3. Lying by false credentials was also common among the prosecution witnesses, primarily because none of them had hands-on knowledge of the software in question in the EBS case. Shawna Meyer is the poster child for this kind of lying on the stand — she had essentially zero direct knowledge of anything, but seemed to have no problem pretending that she did.
4. I blame the prosecutors for lying by misdirection more than the witnesses — obviously, lying by misdirection is the entire game for the prosecutors when the defendants are, in fact, innocent. It would have taken more grit than any of the prosecution witnesses possessed to proactively speak out when they saw this happening.
What is terrifying to me is how prevalent the lying was among a number of the prosecution witnesses. And it strikes me that there simply is no way the federal prosecutors could have been unaware of the lies — indeed, many of the lies had to have been coached to fit the prosecutors’ desired narrative. I wonder what explains this willingness to lie among the prosecutors and their witnesses. Was it the prosecutors’ desire to win at any cost and the witnesses’ intense fear of the prosecutors that drove this behavior?
What worries me is my sense that this behavior is fairly common among prosecutors and their witnesses. Perhaps it springs from the prosecutors’ rationalization that a defendant is, by the prosecutors’ definition, guilty and, therefore, anything they must do to get a conviction at trial is acceptable, including lying and coaching lying. For the prosecutors, the trial is not about guilt or innocence — as federal prosecutor, John Kroger, once told a defense attorney, the prosecutors have already “made up their minds.” So, for the prosecutors, it is only about getting a conviction, guilty or not!
But what about the prosecution witnesses? I have often wondered how they rationalize their false testimony and how they live with it, knowing the damage they have done to innocent people and their families. I know that witnesses like John Bloomer and Bill Collins were terrified of the Feds, and people tell me that both of them have a history of lying — therefore, I guess I should not be surprised that they continued their normal behavior on the witness stand. Still … it is depressing. I want to think that even weak people are capable of rising above their worse selves when another person’s freedom is in their hands. I mean, think of it — for once in their lives, these prosecution witnesses were faced with a clear moral choice — lie and put a person in prison or tell the truth and potentially face the wrath of the Feds. And the prosecution witnesses caved in — they failed at what is likely one of the most clear-cut moral choices with which they will ever be faced. I wonder how they live with it?
And I pray that, if I am ever faced with the same kind of choice, I will have the courage to be stronger (and better) than they are.