'Chronicle's Enron Appeal May Be Decided This Week

By: Mark Fitzgerald A U.S. appeals court panel could rule as early as this week on the Houston Chronicle's motion that they order the judge overseeing the criminal cases against three Enron executives to stop holding closed hearings and to unseal the transcripts of three sessions he has already held in chambers.

Chronicle attorney Bill Ogden told E&P it was a good sign that the three judges on the Fifth U.S. Circuit Court of Appeals panel ordered all responses to the newspaper's motion to be sent to their separate offices in Houston and Shreveport, La. The judges also invited, but did not require, U.S. District Court Judge Kenneth Hoyt to explain why he has held closed hearings in the criminal cases involving Enron's former CFO Andrew Fastow, its former Treasurer Ben Glisan Jr. and former financial executive Dan Boyle. "That indicates to me they are taking it seriously, and they will take the next step somewhat expeditiously," Ogden said.

Judge Hoyt so far hasn't taken the Chronicle seriously, Ogden said. When Hoyt first closed an Enron hearing, on July 28, the Chronicle demanded a hearing on its motion that the transcript be released. Hoyt set a date nearly a month later, and after he concluded the hearing with the Chronicle on Aug. 26, he conducted two more closed-door sessions with the Enron prosecution and defense teams the same day. "It was very clear that he wasn't paying any attention to our motion, didn't regard it as matter of consequence, and was going to continue to close the court," Ogden said.

The Federal prosecutors in the Enron case have said they do not oppose the Chronicle's motion to unseal transcripts and open the sessions. "We're waiting to see if they go the next step and support us," Ogden said. "I think they're generally supportive of access to open court."

Judge Hoyt has suggested only routine matters such as scheduling court sessions and discovery deadlines are discussed in the closed hearings. When he was asked for an explanation, Ogden said of the judge, "He was overly circuitous and overly ambiguous about what exactly is going on."

Hoyt gave this explanation at the Aug. 26 motion hearing: "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." Ogden pointed out that Jeff Cohen, the Chronicle's editor, had responded in the paper that "'there's no embarrassment exception to the First Amendment."