There's still no deal for a plea bargain involving Andy and Lea Fastow, thanks to the judge in the Lea Fastow case imposing some conditions that she isn't willing to accept.
On Friday, the deals stalled when Lea Fastow was not willing to accept the uncertainty implicit in U.S. District Judge David Hittner's refusal to commit to a sentence for her.
The attorneys haven't stopped trying though, said Mike DeGeurin, Lea Fastow's lawyer. Enron Task Force prosecutors and defense attorneys will keep talking long-distance over the weekend to find a way to resolve the cases.
Last Monday, the lawyers expected a series of legal dominoes to fall: Lea Fastow would agree to five months in prison; ex-Enron CFO Andrew Fastow would agree to 10 years in prison; the couple would forfeit tens of millions of dollars, and the government would get key testimony to implicate others in Enron's top management.
But Friday afternoon ended in disappointment after Hittner refused to approve Lea Fastow's five-month sentence and left the couple gun-shy by indicating he thought the sentence too low but would order a pre-sentencing investigation before deciding.
"But the importance of Andrew's cooperation to the government and family conditions for the Fastows means that a deal still must happen," said Jacob Frankel, a Washington, D.C.-based defense lawyer and former federal prosecutor.
Hittner had given Lea Fastow until noon Friday to decide whether to accept his terms -- a guilty plea but no decision on length of sentence until he received a pre-sentence investigation. Otherwise, her not guilty plea to six counts of fraud, money laundering and making false tax returns would stand and she'd be headed to a Feb. 10 trial date.
The silence at noon led Hittner to issue an order, a mere formality with no legal weight, saying the 225 written jury questionnaires could be picked up by lawyers on Friday afternoon and the trial is on.
"We're a little disappointed," said Enron Task Force director Leslie Caldwell as she left the Houston federal courthouse Friday on her way to the airport. She said prosecutors were not counting on the plea deal for sure and are prepared to go forward with their investigation.
But it's clear the plea deal could be revived at any time.
"The risks are too great for both sides. The Fastows would be foolhardy to pass up such generous dispositions, and the government has to want to be free to prosecute its other cases and conclude its investigation," said Philip Hilder, a Houston lawyer and ex-federal prosecutor who represents several witnesses in the Enron cases. "The problem now will be that the new compromise may be significantly less palatable to one or more sides. But that's how it happens."
Though there was frustration among some legal experts that Hittner did not accept the plea, they said the judge was within his rights to reject the government's offer and ask for the typical background investigation, which could take about 60 days.
A plea bargain is a three-pronged agreement. Consensus must be had among the defendant, the government and the judge.
The judge appears to be the least moveable part at this point.
The prospect of dismissing the case against Lea Fastow does not appear to be on the table. But the government may have leeway on how it requires Lea Fastow to serve the five or more months -- in prison, a halfway house or even house arrest. With a guarantee that her children would not be without a parent, it seems possible she could agree to a longer term.
"There are a number of things that could solve this. But in the end, Lea Fastow may have to take a leap of faith when it comes to the judge," Hilder said.
The biggest hurdle is likely fear that Hittner will not guarantee a sentence now and she could wind up withdrawing a guilty plea and heading to trial anew in two months when the judge finally names a number.