Alexei Barrionuevo, who has done an excellent job covering the Lay-Skilling trial for the NY Times, weighs in today with this article reporting on U.S. District Judge Sim Lake’s decision to include in the jury charge an instruction relating to the “conscious avoidance” or “deliberate ignorance” for both Skilling and Lay, which is a lower standard for finding the men guilty of conspiracy and fraud related to the company’s collapse in December 2001. In short, such an instruction allows the jury to convict the defendants of crimes if it concludes that the former executives put their heads in the ground (thus, the instruction is nicknamed “the Ostrich instruction”) to avoid finding out about criminal activity at the company.
The instruction is important from a legal standpoint, particularly given that the U.S. Supreme Court reversed the conviction of Arthur Andersen in an earlier Enron Task Force prosecution because of a faulty jury instruction. Inasmuch as neither Skilling nor Lay contended in their defense that they were detached from running Enron during the time in which the Task Force alleges that they committed crimes, and the Task Force has prosecuted the case as a fairly typical “pump and dump” case, there is a good argument that inclusion of the instruction in the charge is reversible error if either or both men are convicted. Barrionuevo quotes my old friend, Houston-based criminal defense lawyer, Joel Androphy:
“The government can’t argue a theory, offer evidence on a theory and then do a 180 and argue for an instruction on an alternate theory. That’s not permissible.”
Although important from a legal issue standpoint, my sense is that the Ostrich instruction in this special case is probably not all that important from a practical standpoint. Because of the almost unprecedented negative media coverage relating to Lay, Skilling and Enron prior to this trial, the much more important issue is whether the jury was truly impartial at the outset of the case. If they were not, then Lay and Skilling’s fate was sealed from the beginning and the Ostrich instruction is not going to affect the jury’s decision in the slightest. On the other hand, if the jurors are truly impartial — particularly the leaders on the jury who will guide the panel to a decision once deliberations begin — then my sense is that the jurors are unlikely to rely on something as amorphous as the Ostrich instruction to convict these men in a case of this nature.
In short, if the jury is truly impartial — the key issue in the trial — then they are likely going to want more meat than merely Lay and Skilling “should have known” to send these men to the slammer for the rest of their lives.
