Well, I wasn’t able to put other pressing matters aside to attend opening arguments yesterday in the criminal trial of former key Enron executives Ken Lay and Jeff Skilling, but I did score a transcript yesterday evening and was able to read it.
In doing so, I was reminded of a point that a wise, old trial attorney-mentor made to me early in my legal career — “Almost all opening statements are too long.”
Now, Lay-Skilling is a complicated business case, so there is a lot of explaining to do. And when the prosecution takes an hour and a half in opening, the defense often feels that it is necessary at least to match that length in opening or the jury might presume that the defense doesn’t really have an answer for everything that the prosecution alleged.
So, there are valid reasons for long opening arguments.
Nevertheless, my experience is that, even during the most spellbinding opening arguments, the attention of jurors tends to begin wandering after 30 minutes or so.
My wise old mentor also advised me: “Make all your important points in the first 20 minutes of your opening — sort of like a sermon at church — because those jurors tend to wander off after that — just like in church.”
As I read the transcript last night, it occurred to me that, if jurors were allowed to ask a question of the attorneys during opening arguments, one of them would have almost certainly raised their hand and asked: “Could you go over that whole ‘reserve account thing’ again?”
At any rate, the first round of the trial is done and it’s reasonably clear from the reading the transcript and the first hand accounts (Chronicle Enron team blog and Loren Steffy’s blog) and the reports (NY Times/Alexei Barronuevo and WaPo/Carrie Johnson) that neither side scored any early knockdowns.
Opening arguments are for helping jurors establish a framework within which they can evaluate the evidence to come, so it’s risky to try and land a haymaker that could put the other side on its back early. Neither side took that risk.
The Enron Task Force’s John Hueston continued to push a theme in the prosecution’s case that has become apparent since the Task Force’s earlier failures in both the Arthur Andersen case and the Enron Broadband case — i.e., that the case against Messrs. Lay and Skilling is really a simple case of non-disclosure about Enron’s true financial condition.
In a nutshell, Hueston contended that Enron was a formerly successful company that was having severe financial problems by 2001 that both Skilling and Lay covered up so that they could unload their company stock at higher prices than what they would have gotten had they disclosed the true financial condition of the company to the investing public.
From reading the transcript, Hueston’s argument appeared to be competent and reasonably well-organized. However, I was left wondering whether the Task Force may have overdone its goal of simplicity.
I mean, did Lay and Skilling really orchestrate this alleged massive fraud simply because they are greedy men?
Indeed, as the defense attorneys proceeded to point out, there is certainly much in Lay and Skilling’s life stories that indicates that they are not particularly greedy. After reading Hueston’s opening, I could almost imagine a juror thinking: “Well, fine. But with all this hubbub, don’t you have more of a story than that?”
Defense attorneys Dan Petrocelli (Skilling) and Mike Ramsey (Lay) clearly understood this dynamic, as both of them emphasized their respective client’s humble backgrounds and continually pointed out the conflict between the prosecution’s simple case theory and the wide-ranging and almost indecipherable allegations contained in the government’s indictment against two defendants.
In that connection, Mr. Ramsey pointed out what appeared to me to be the biggest oversight of the day — the government’s failure to mention the word “conspiracy” in its opening remarks even though the prosecution is banking a large part of its case on Lay and Skilling’s alleged orchestration of one of the largest criminal conspiracies in history.
Similarly, it also appeared that Hueston made a mistake in opening by failing to acknowledge that Lay’s stock sales were pursuant to margin calls.
How can the government accuse Lay of being greedy because of his stock sales when those sales were involuntary?, Ramsey reasoned.
By the way, as Mr. Steffy noted on his blog during the arguments yesterday, Ramsey’s courtroom style really appeared to resonate with the jury. Here are just a few of Ramsey’s gems:
“Now, there’s a lot of talk about Andy Fastow and and the various thefts that he committed at Enron. [The money that] Andy stole [was] peanuts. Andy stole crumbs. What Andy stole [of importance] from Enron was its good name.”
“[Fastow’s] thefts themselves spread out over a three-year period probably wouldn’t be coffee money and Coke money for Enron during that period of time. Nowhere near enough to sink a company the size of, and successful as, Enron. What happened was the odor of the wolf got into the flock and the flock stampeded.”
“Bankruptcy is not a crime. If it were, we would have to turn Oklahoma back into a penal colony because there would be so many people to lock up. It might help [University of Texas] football, but it won’t solve much else.”
“The point of the matter is people will not accept risk if failure means you go to prison. And bankruptcy is not a crime. In order to commit a crime you have to specifically intend to do something the law forbids. And failure in and of itself is not a crime.”
“This is the indictment . . .[It] is 66 pages long. Someday you may be called upon — God save you — to have to read it. If you do, you’ll find it is enormously complex. I don’t blame the [prosecutors] at the table here; I think their predecessors wrote it.
But with all the power and precision of the English language, it is a babbling kind of indictment [that makes it] very hard to pin down, very hard to determine what you are actually charged with. . .”
“When you don’t have a case, you talk about something else, and that’s what [the prosecution is] doing when they are trying to make Ken Lay look greedy and when they start talking about him selling stock based on inside information.”
Several months ago, I was attending a hearing in the Lay-Skilling case on a day in which Mr. Ramsey was not fairing particularly well with U.S. District Judge Lake.
On multiple occasions, Judge Lake refused to do what Mr. Ramsey requested and then finally told him to sit down and stop arguing.
A lawyer from the East Coast who was also attending the hearing leaned over and remarked to me: “Gee, it sure doesn’t appear as if Ramsey is particularly effective in presenting matters to Judge Lake, does it?” I replied:
“Mike Ramsey is not on the defense team for his ability to persuade Judge Lake. But wait until you see him talk to a jury.”
The trial cranks back up at 8:30 a.m. today with former Enron investor relations chief Mark Koenig expected to be the first prosecution witness.
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Amidst the hubbub of the Lay-Skilling trial, it’s a bit 1980’s-esque to harken back to the days of the Savings & Loan debacle. Nevertheless, this interesting DOJ press release caught my eye earlier in the week because it deals with one of the more colorful characters of that bygone era, Edwin T. McBirney, III, the former chairman and CEO of Sunbelt Savings. Sunbelt bit the dust during the shakeout of the S&L’s during the late 1980’s and early 90’s, and the federal government pegged the cost of Sunbelt’s demise at about $1.2 billion.
Almost lost amidst the publicity over the first day of testimony in the Enron-related Lay-Skilling trial was 
