In 1963, the U.S. Supreme Court decided the landmark case Brady v. Maryland,ruling that prosecutors had to turn over all exculpatory evidence to the defense. In a perfect criminal justice system, all prosecutors would want to win fairly and wouldn't need the highest court in the land to explain that withholding exculpatory material is a gross miscarriage of justice.
But if you ever wanted to read about how imperfect the system can be -- in a simultaneously compelling and maddening way -- then prosecutor-turned-appellate lawyer Sidney Powell's new book on prosecutorial shennanigans at the federal level, Licensed to Lie is a good place to start.
Powell was an ambitious, hard-charging federal prosecutor in Texas and Virginia until 20 years ago, when she felt her talents were needed on the other side.
Although book covers a variety of cases, including the prosecution of U.S Senator Ted Stevens of Alaska, Houston readers might find Powell's vivisection of the Enron Task Force especially enlightening. Powell represented Merrill Lynch executive Jim Brown, who was entangled in the convoluted Enron Barge mess dreamed up in part by former Enron CFO Andrew Fastow.
"It seemed as though everyone in the city had suffered some loss related to Enron," Powell writes. "Houstonians ranged between livid and sick. The ripple effect was more than could have been anticipated. Every industry in Houston had benefited in some way from Enron's massive operations and philanthropic contributions. With Enron's downfall, other businesses soon collapsed: restaurants, small shops -- any business that did business with Enron suffered. The public was screaming for heads to roll."
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The head-choppers were known as the Enron Task Force, "a joint effort of the [Department of Justice], the SEC, the FBI, and the Internal Revenue Service." Powell writes that "because of the Bush connection to [Enron CEO] Ken Lay, the Enron Task Force was untethered from the [DOJ]," and was led by specially selected prosecutors with "unlimited resources."
Armed with this power, the task force secured a number of convictions, but when Powell stepped in to handle Brown's appeal and reviewed hundreds of pages of newly disclosed documents, she discovered that prosecutors had counted on more than vast governmental resources: they had violated Bradyand withheld exculpatory evidence.
"As we combed through the hundreds of pages of newest disclosures and found the prosecutors' highlighting, it became evident that the prosecutors had deliberately, and with the greatest care, kept the precise words out of the summaries of the crucial witnesses that would have proved the defense. The yellow-highlighted evidence they hid directly contradicted their witnesses and arguments."
The book reached No. 1 on Amazon's ethics/law and education/reference books list, which is good for Powell and her publisher, but "education/reference" might make Licensed to Lie sound like a dull textbook overflowing with footnotes and impenetrable legalese. It's not. And it doesn't require that your heart bleed for any of these millionaire white collar defendants, either. The issue here is that federal prosecutors -- like all public servants, like all defendants -- are not above the law. And Powell's book makes it abundantly, frighteningly clear what can happen when they think they are.