A federal judge today held two more closed hearings in the criminal case against Andrew Fastow and two other former Enron executives, and refused to unseal the transcript of a July 28 hearing he also held in secret.
U.S. District Judge Kenneth Hoyt denied a motion by the Houston Chronicle to make public the record of the unusual closed hearings in July and the two on today. One conference was held in the morning with prosecutors and the lawyers for defendant Ben Glisan and a second in the afternoon with prosecutors and lawyers for Fastow, Glisan and Daniel Boyle.
All have pleaded not guilty to charges of fraud in connection with various deals at Enron. Fastow faces nearly 100 counts himself.
Hoyt denied a Chronicle request to be allowed to attend the two Tuesday hearings. The Chronicle's reporter and lawyer were told to leave the hallway outside by court security officers, who said Hoyt ordered them to do so. The officers said the two would be detained if they did not leave.
"There are matters that do not need to be discussed in public in ways that embarrasses or humiliates the government or the defense and particularly the court," Hoyt said from the bench.
The judge made clear that the defendants' lawyers had not asked for the multi-defendant closed hearings but that he had closed them himself. Hoyt said sessions with lawyers in a judge's chambers are common and his goal is a fair trial for the defendants and for the government.
He said some matters should not be public. He said it would be impossible to discuss publically such as questions about how much evidence has been obtained, when more evidence might be available or what the two sides recommend for a case schedule.
In other Enron cases and in most criminal cases such questions are routinely asked in open court.
Hoyt was appointed by George W. Bush's real father, Ronald Reagan.
"Embarrassment is not an exception to the First Amendment," Chronicle Editor Jeff Cohen said. "With all due respect to the judge, we will continue to press him to open these hearings until he provides a better explanation."
I'm not an attorney, so I can't comment on whether Hoyt's rhetoric of embarrassment and humiliation is commonplace or appropriate. But to a legal outsider, it sounds overly secretive, disingenuous, and just plain weird.
