Fallout from the recent Tyco mistrial after a juror was publicly identified during deliberations has reached at least one upcoming criminal trial stemming from Enron Corp.’s scandalous implosion.
Prosecutors from the Justice Department’s Enron Task Force have asked the judge presiding over the June 7 trial of four former Merrill Lynch & Co. executives and two former Enron executives to keep names, addresses and workplaces of potential jurors under wraps — even from lawyers on both sides.
Some defense attorneys dismiss such measures as unnecessary or say that level of secrecy deprives the defendants of information that would help weed out potentially biased jurors.
“The empanelling of an anonymous jury deprives Furst of the presumption of innocence because jurors are likely to conclude that if their identities must be kept secret, the defendants must be dangerous persons and, therefore, guilty,” Ira Lee Sorkin, who represents former Merrill executive Robert Furst, said in court papers filed last week.
U.S. District Judge Ewing Werlein has yet to address the issue.
The indictment alleges Enron, with Merrill’s knowledge, booked a profit from the December 1999 sale of Nigerian barges to appear to have met earnings targets. All six defendants are charged with conspiracy.
Some also face charges of lying to the FBI or a grand jury investigating what led to Enron’s collapse about the secret buyback promise. All have pleaded innocent.
Bill Rosch, who represents former midlevel Enron finance executive Dan Boyle, dismissed the prosecution’s request as “headline grabbing.”
“Everybody’s mad about Tyco, but that’s the way the system works,” Rosch said. “The system has worked fine the way the judges and lawyers in this community have tried cases for years. If it’s not broken, don’t fix it.”
Prosecutors argue in court papers that Werlein could tell jurors anonymity is warranted by publicity and “potential officious contact from inquisitive others.” With that explanation, defendants would still enjoy proper jury selection and their presumption of innocence, prosecutors say.
Sorkin countered that juror anonymity is a drastic measure for cases where juror safety is at risk, or when extensive publicity increases the possibility of intimidation of jurors.
A federal judge in New York declared a mistrial last month in the grand-larceny case against L. Dennis Kozlowski, Tyco’s former CEO, and Mark H. Swartz, the former chief financial officer. U.S. District Judge Michael Obus ended the six-month trial during deliberations when a juror received an angry letter and a telephone call after she had been identified in some newspapers.
Juror identities are usually public records, but news organizations traditionally don’t identify them until a trial is over. The newspapers that published Ruth Jordan’s name said their actions were justified because she made a motion interpreted by some reporters as an “OK” gesture toward defense lawyers. She has since denied making such a gesture.
Tyco fallout also touched the retrial of former investment banker Frank Quattrone on charges of obstruction and witness tampering when U.S. District Judge Richard Owen barred reporters from publishing juror names.
Owen told media lawyers the Tyco trial was “blown to smithereens” when Jordan was identified during deliberations. News outlets, including The Associated Press, said they didn’t intend to publish those names, but challenged the order on constitutional grounds.
“But for the Tyco case, no one would be thinking of this,” said Nancy Rapaport, dean of the University of Houston Law Center. “Once news organizations reported name of Juror No. 4, that ramped up concern that jurors might be pressured.”
But that doesn’t justify shrouding part of a public process in secrecy, said Mark Biros, a former federal prosecutor with the law firm of Proskauer Rose in Washington D.C.
“There is a constitutional provision which talks about a public trial, and normally they’ve used anonymous juries where there was some threat of tampering,” Biros said. “I certainly would hate to see wholesale usage of that.”
None of the six defendants in the Merrill Lynch case are among the famous to emerge from the Enron scandal. But former Enron finance chief Andrew Fastow, who pleaded guilty in January to running schemes that helped fuel the company’s downfall, is expected to be a key witness in the trial and garner heavy media interest.