Do As I Do, Not As I Say

A brace of the country's best criminal attorneys had just stepped into a very sticky pile at Houston's federal courthouse last week, and their pained expressions spoke more eloquently than a closing argument for their clients, Enron first couple Andy and Lea Fastow.

After negotiating with prosecutors for pleas that effectively told the world that their clients would shortly admit guilt, the lawyers faced a federal judge who wouldn't rubber-stamp the sentences. That left a truly Fastowian bargain on the table: Go ahead and hope that Judge David Hittner isn't feeling grumpy the day Lea comes before him, or go to trial in a community where anyone following the news now knows the couple is guilty as spin.

For those who relish seeing high-paid attorneys with parts of their anatomy in a wringer, it was a field day. According to The New York Times, San Francisco hotshot John Keker was "heartsick" over a plea bargain that would give his client Andy a ten-year sentence. Gray drizzle peppered attorney Mike DeGeurin, Lea's lawyer, as he faced the media on the courthouse sidewalk after Hittner's damper of a ruling.

"This is a terrible turn of events if we're gonna pick a jury in the next 30 days," lamented DeGeurin, noting that the media had now inadvertently become an agent of the prosecution. "You have a right to report everything that you can to the public, and if this information gets to the jury pool, it taints us."

It was a conundrum of the lawyers' own making. After Andy's subordinate Michael Kopper rolled on him, it was clear the feds had plenty of ammunition to nail the former chief financial officer. Yet Fastow refused to bargain to save his wife from charges, as Kopper had successfully done for his own domestic partner. Now Lea was in the dock, facing a judge who was in no mood to have the John Ashcroft-led Justice Department dictating punishments to him.

The deal did have some significant sweeteners. It shaved eight years off the prison term the government originally offered for Andy's cooperation, say sources familiar with the negotiations. And Lea would get only five months in minimum security, which could be viewed as an extended visit to the federal fat farm, timed so she could return to take care of their two young boys before her husband goes in the slammer.

Hittner loves to preside over high-profile trials pitting big-name attorneys against the feds, but more was at stake than simply a reluctance to give up a show. In the last year a confrontation has been looming between the DOJ and judges over Ashcroft's attempts to let his prosecutors dictate sentences.

It came to a head when Congress passed legislation last year sponsored by GOP Congressman Tom Feeney of Florida and pushed by Ashcroft. The law requires the U.S. Sentencing Commission to keep records on judges who issue sentences below the guidelines. Those records would be sent to Ashcroft, who would be required to provide the material to the House and Senate judiciary committees. It is seen by many judges as a way to force them into accepting the toughest sentences sought by prosecutors, since the records might come into play if they are nominated for higher courts.

The issue was serious enough that Supreme Court Chief Justice William H. Rehnquist used his annual year-end report to blast the law as a potential "unwarranted and ill-considered effort to intimidate individual judges on the performance of their judicial duties."

While some interpret Hittner's refusal to sign onto the plea bargain as an indication he wanted a tougher sentence for Lea, a friend of the judge sees it differently. Houston attorney David Berg is convinced the issue of judicial independence is the driving force, and the Fastows have nothing to fear by trusting in the judge's compassion.

"What Hittner was doing," explains Berg, "is saying, 'I may do your deal, government, but I'll do it on my terms, and you're not coming in here telling me without a pre-sentence investigation what I'm going to do.' Now he knows that sends a message all the way to Ashcroft, because this deal is the linchpin to getting [top Enron execs] Jeff Skilling and Ken Lay."

The attorney general issued an edict last year requiring that plea bargains enforce the sentence for the most significant charge faced by defendants. Attorney Phil Hilder, who represents Enron whistle-blower Sherron Watkins, says that "one size fits all" policy has come back to haunt Ashcroft in the Fastow case.

Hilder notes that Lea Fastow would be allowed to plead to a relatively minor charge of making false tax returns, rather than more serious counts of conspiracy to commit wire fraud and money laundering.

"Here Ashcroft is allowing his prosecutors to thwart his own edict," says Hilder. He contends that the feds are demonstrating that the attorney general's policy is ludicrous.

"He's being draconian in trying to punish everybody to the maximum amount of the law, but that does not take into account the realities of certain situations and the necessity to allow the prosecutors their own discretion. If you were to follow his theory, Lea Fastow should not be allowed to plead to this particular count."

Although the edict makes an exception for defendants giving "substantial assistance" to the government, indications are that cooperation is being sought from Andy, rather than Lea, against other Enron biggies.

Both Berg and Hilder predicted Lea's attorneys had little option but to trust that Hittner would accept the deal once the question of judicial independence was out of the way. However, at press time it appeared that the Fastows had rejected that course and the plea agreement was off, setting the stage for a trial.

Berg recalls a case in the '80s where federal Judge Carl Bue refused to accept a three-year plea bargain Berg had worked out for a client who had stolen $30 million in oil and then sunk a ship to cover up the evidence. Bue eventually imposed a ten-year sentence.

Berg notes his client served three years, and then walked away from a minimum-security penitentiary and was never seen again.

"I think he just decided, 'Look, I'm going to enforce my own plea bargain,'" chuckles the attorney.

After all their humiliation and stress, the Fastows might like to disappear from the face of the earth, too. But with two kids in tow it doesn't appear to be an option.

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