Indeed: Who is John Kroger?

While reading the L&C Chronicle article, something about this part triggered a vague memory I had of something going very wrong with that prosecution:

For a little over a year, he led the inquiry into Enron's broadband business--whose reported earnings on a future video-on-demand service, famously dubbed "Project Braveheart," contributed to the company's inflated stock price. FBI Special Agent Jeff Jensen says Kroger set an aggressive, hard-charging tone. "Often prosecutors want agents to do a lot of work for them, to summarize and filter a lot of the information. John wasn't the kind of guy who wanted the CliffsNotes version. He'd say, 'You've got 10 boxes? Well, send me 10 boxes.'"

A little google work quickly brought back what I had vaguely remembered. It turns out the spin in his resume may potentially be misleading:

Judge dismisses Enron convictions Former broadband finance chief sees five counts go by the wayside http://www.chron.com/disp/story.mpl/special/enron/broadband/4516705.html

A judge has tossed out the only jury convictions won by the government so far in a tangled case involving former executives from Enron's long-defunct broadband division.

A theory used by prosecutors and an instruction to jurors regarding deliberations prompted U.S. District Judge Vanessa Gilmore to issue a ruling Wednesday that erased five convictions of conspiracy, wire fraud and falsifying books against Kevin Howard, former finance chief of Enron's broadband division.

....

Krautz's attorney, Barry Pollack, said Wednesday that the task force has been "extremely aggressive" with legal theories that are leading to reversals on appeal.

Kroger's resume is vague on his actual role, so we have a right to know what responsibility he had, if any, for why things went so badly wrong.

We here in the NW all-too-often are quite taken with crazy or dumb viewpoints. That may not be the situation in this case, but , we really have an obligation to closely question Kroger about his views and this case if he choses to run.

Dear "Not So Fast":

I am very proud of my career as a prosecutor. As an Assistant U.S. Attorney, I obtained convictions of mafia killer Greg Scarpa Jr., mob boss Alphonse Persico, drug kingpin Juan "The Puma" Rodriguez, and hundreds of other drug traffickers, mafia members, and white collar criminals. After the 9/11 attack in New York, I workled on the nation's emergency response team. These were important cases, and I am proud of my work.

I worked on the Enron case from 2002 to 2003 during a leave of absence from Lewis & Clark Law School, where I teach. I focussed on several different parts of the case, but one primary responsibility was to lead an investigation of Enron's telecommunications division. My team and I sought the indictment of seven executives: the CEO, the COO, and CFO, and four others. The CEO and the COO both pleaded guilty to a conspiracy to mislead investors and testified against Jeff Skilling and Ken Lay at their trial. Without their testimony, Skilling might not have been convicted. Thus, my decision to seek their indictment proved very important.

The CFO was convicted at trial years after I left the case, but his conviction was thrown out because the judge used a flawed jury instruction. One defendant -- the lowest guy on the totem pole -- was acquited. The three others still have cases pending.

The crimes committed at Enron were horrible, wiping out thousands of jobs, eliminating the retirement savings of thousands of employees, and jacking up energy costs across the west coast. I think all of us who worked on the case believed it should be investigated and prosecuted aggressively, and that is what we did. The case has not always gone smoothly -- the defendants have spent roughly $100 million to pay the world's best corporate defense lawyers, including some from Portland's own Stoel Rives firm, and they have fought very hard -- obtaining some mistrials and a small number of acquittals. Overall, however, I think the results we achieved were excellent.

I think when anyone runs for office, we should scrutinize their record carefully. I have tried to spend my life fighting for things I believe in, as a US Marine, a democratic activist, a prosecutor, and a teacher.

This is exactly the kind of Democratic candidate we need to support and get elected to office. He's got my vote.

Val

Now this is really getting confusing for average folks like me who have nothing available about this but the newspaper accounts:

John Kroger says:

"his conviction was thrown out because the judge used a flawed jury instruction"

which makes it sound like it was the judge's fault. He also seems to use language like "a small number of acquittals" in a way which seeks to minimize what may have actually happened.

In contrast, the newspaper story says:

"---> A theory used by prosecutors <--- and an instruction to jurors regarding deliberations prompted U.S. District Judge Vanessa Gilmore to issue a ruling"

and

"She threw out the fifth conviction of falsifying books and records because an instruction she gave jurors ---> at prosecutors' request <--- tied it to the tainted conspiracy count."

which makes it sound more like the prosecutors' fault. In addition, this same story, dated 1 Feb 2007, leads with this observation about the importance of this reversal in this Enron broadband component of the larger Enron case:

"A judge has tossed out the ---> only <--- jury convictions won by the government so far in a tangled case involving former executives from Enron's long-defunct broadband division. "

Clearly, these are factual differences. This story is also disturbing:

Did Enron Broadband Jurors Swap Votes? http://www.cfo.com/article.cfm/7054690

"According to the paper, Oswalt maintained that she and two others thought Howard was not guilty, but they succumbed to pressure from the trial judge, who wanted the jury to reach a decision, and from other jurors, who seemed unlikely to change their positions."

Which hardly make it sounds like the judge was working in a way which was to the detriment of the prosecutors.

Finally, this blog I found using Google (and we know that one must take Google and blogs with a large dose of salt) further muddies the picture about who is right and wrong in this case:

More misconduct by the Enron Task Force? http://blog.kir.com/archives/002159.asp

On this blog, I'll bet most agree that what the Enron people did was a horrendous crime that deserves fuller punishment than apparently any laws allowed. We recognize that Kroger was only involved in the case early, and was not directly resonsible for what happened in the courtroom 2 years later. But we also frequently see that prosecutors can have an egotistical mindset about their special role as defenders of the society they believe should be, and that may not always be in full accordance with reality, ethics, or morality. As a lefty, I tend to think rather highly of defense attorneys as our only bulwark against over-reaching by government. I have known several defense attorneys who have earned that respect many times over. Even though I'm the first to admit we need good prosecutors in our society, unfortunately Kroger's presentation here tends to reinforce the wisdom of that belief in defense attorneys.

Something went terribly wrong in the Enron broadband case. At least from the standpoint of us average working people harmed by Enron, the larger Enron case also has not exactly developed well either. As this discussion demonstrates, the facts on the table available to average folks about what has happened, and why, remain confused and confusing. In particular, I think a lot of us still want to know why the seemingly committed prosecutors in this case haven't more aggressively exposed connections between corrupt Enron figures and government officials a little more diligently in the 5 years since the Enron collapse, and in the 7 years before that. There have been three election cycles in that period that might have turned out quite differently.

I am sure Kroger is a fine individual, a good teacher, and probably someone whose beliefs on white collar crime most of us, including me, agree with. Nonetheless, depending on what a campaign bears out, and in view of recent political history, I may want an A.G. or a Senator who is more clear about facts, and perhaps less morally strident in certain ways. (Which is quite apart from having a wise moral code and resolutely defending principles and values.) At this particular moment, my feeling is that what I'd really like is to see John Kroger dedicate his obvious passion to the defense bar, fighting the enormous civil rights issues we will face over at least the next decade if he is looking for a career change. Clearly, he would bring unique knowledge and valuable skills to that noble cause that only a former Federal prosecutor can.

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Your comment Kari is kind of strange and actually I am not sure how to interpret it as a reader of this blog: Why would you point that out? Why would it matter who posts so long as the posts deal with factual matters in a proper way? From what I have read previously, even though they frequently don't live up to it, folks who post here go out of their way to insist this is supposed to be a place where ideas and not personalities matter. Are we seeing some hypocrisy that the last thing progressives here can stand is being challenged by fellow progressives who are solid thinkers?

Here is a question for John Kroger if he runs for A.G. that I think many Blue Oregon readers would find interesting, I know I do:

Perfidious Gilded Age U.S. Supreme Court benches judicially legislated through the most tortorous logic to grant corporations status as "persons" under the 14th Amendment. This act of judicial fiat, arguably more than any other in our history, has been an all but insurmountable obstacle to principled prosecutors, as you seem to be, trying to hold soulless corporations and fiduciaraly-bound corporate officers accountable for what should be criminally and civilly-actionable predations on our society.

In deed this seems to be at the root of why the convictions were reversed in the Enron broadband case if the first-cited newspaper story is correct. The 11th paragraph of that story succinctly states:

"The appeals panel said the honest services theory didn't apply because the defendants' actions ---> were aligned with corporate goals and they didn't rob Enron of money or property. <--- "

Corporations are obligated by statute and court precedent to only act in their fiduciary interest, and they are protected by their 14th amendment status in doing that in a way no natural born person is. As the appeals court in effect ruled, the failure of justice in the Enron case is that there is no "honest corporate services" obligation under which these corporate criminals can be held accountable.

The A.G. of a state would be in a unique position to work to reverse this.

I'd be very interested to know (and supportive) if Kroger would make stripping corporations and other entity-hiding liabilities of personhood status the signature initiative of his tenure if he were to become A.G. He certainly seems principled enough, smart enough, and tireless enough to get it done.

"Why would it matter who posts so long as the posts deal with factual matters in a proper way?"

I agree that the facts should stand alone, regardless of who put the facts forward.

But I also don't disagree with Kari...it sometimes is informative to exposure multiple aliases from the same (person ...maybe or maybe not) IP address. Exposing sock puppets is good.

But this poster is not playing with his sock puppets, he/she is putting forth facts, while hiding behind aliases. That is not bad, and perhaps there are valid reasons for that. But at least Kari did not take it to the extreme, obsessive and maniacal wierdness of Bojack, who tracked down the real life identity of poster(torridjoe), and also exposed his place of employment, etc.

In view of Kari's remarks about "trust" (which really is closer to "branding" than "trust" in this context) Steve Novick's cryptic comments about the ethical obligations of lawyers should not go unremarked upon.

We need to be fair that prosecutors actually have two distinct roles: The first is to decide whether and what criminal charges or civil claims to levy against a defendant. The second is the role they have in common with defense attorneys of being zealous advocates for their clients.

The first is a position of power and enormous responsibility. The ethics codes for lawyers are qualitatively different for this role compared to the second, as is the place of zealousness. Any good defense attorney will tell you that the only person with power that matters in a case is that of the prosecutor who gets to make the decision to prosecute.

It is this first role that my previous comment that

"we frequently see that prosecutors can have an egotistical mindset about their special role as defenders of the society they believe should be, and that may not always be in full accordance with reality, ethics, or morality. "

applies. The dangers of zealotry in that role are far more significant than Novick's lawyerly construction might imply to us lay people. I think we just have to look at the political appointees in the current DOJ to see plenty of backing for that claim.

Careers, reputations, and innocent lives can be all but ruined just by the laying of charges that calmer, wiser, less dogmatic minds may see as irresponsible. In particular, the trick of high-handedly using the power of the state to bring charges which are flimsy at best, and then getting someone to plea bargain to avoid a trial is a disreputable tactic that has significantly undermined the moral authority of our justice system. The Enrons against which this tactic can be justified are actually rare cases.

In the second role, prosecutors, and federal prosecutors in particular, have more resources to bring to bear on their side than almost all defendants who find themselves brought before the bench. Prosecutors who have that anointed view I alluded to can too easily rationalize hyper-zealous use of their privilege and superior resources as being more than justified, even as citizens with more diverse and realistic viewpoints may just see it as government over-reaching.

Novick's comments certainly are valuable. Unfortuantely they so nuanced in a lawerly way that to me they don't bring the value to the discussion they could.