It is currently the calm before the storm that will be the trial of the legacy case of the Enron Task Force — that is, the criminal trial of former Enron executives Ken Lay, Jeff Skilling, and Richard Causey that is scheduled to begin in mid-January, 2006.
In that connection, this Washington Post article discusses the extensive questionnaire that was recently sent to prospective jurors in the Lay-Skilling-Causey trial, which has taken on added importance because of the extensive evidence of jury pool bias against all things related to Enron that the Lay-Skilling-Causey defense team has submitted to U.S. District Judge Sim Lake. Judge Lake declined to grant the defense’s motion to change the venue of the trial out of Houston, but he has supported the defense’s desire to have a more extensive questionnaire than the Task Force desired.
Meanwhile, in this the Conglomerate blog post, David Zaring addresses the important question of how does one make a case as complex as the one against Messrs. Lay, Skilling and Causey understandable to a jury? The Task Force already stumbled badly on that score in the trial of Enron Broadband case, and recent indications are that the Task Force is having similar problems in the preparation of its case against Messrs. Lay, Skilling and Causey. A reflection of that is the recent change that the Task Force has taken in regard to Arthur Andersen. Not only did the Task Force previously demonize Andersen in connection with prosecuting the firm out of business, the Task Force named Andersen as a co-conspirator in connection with various Enron criminal cases. However, the Task Force is changing its tune toward Andersen in regard to the Lay-Skilling-Causey prosecution, as prosecutors now recognize that relying on the testimony of admitted criminals such as Andy Fastow and Ben Glisan may not be particularly persuasive to a jury. So, the Task Force is currently listing several former Andersen partners as prosecution witnesses and, in so doing, contending that Andersen was duped by Enron and not really a co-conspirator with Enron, after all. It remains to be seen whether the Task Force can explain to a jury why it prosecuted Andersen out of business at an earlier stage of the Enron case when it is now contending that the firm was simply duped by Enron like everyone else.
Houston's Clear Thinkers
Longtime Houston attorney Tom Kirkendall's observations on developments in law, business, medicine, culture, sports, and other matters of general interest to the Houston business, professional, and academic communities.
How does one make a case as complex as the one against Messrs. Lay, Skilling and Causey understandable to a jury
Two part answer:
A) Become consistent–Indict all the unindicted co-conspirators. It is beyond me how a prosecutor can look at jury square in the face and describe the conduct of a person who has not been charged as crimial.
B) Ask Mark Lanier (or Cliff Atkinson).
John, the prosecution does not want to indict all the unindicted co-conspirators. Many of those witnesses have exculpatory testimony for Lay, Skilling and Causey. The prosecution knows that most, if not all, of those unindicted co-conspirators will take the Fifth Amendment rather than testify. If the prosecution indicts them, however, then the incentive (i.e., to avoid indictment) of the now indicted co-conspirators to avoid testifying is removed. Thus, the prosecution prefers to put on a case based almost completely on testimony of witnesses who have copped pleas rather than have all relevant witnesses testify and simply have the jury sort out the truth. That’s what happened in the Nigerian Barge trial, and the same thing is fixing to happen in the Lay-Skilling-Causey trial.
Mark Lanier is certainly a talented trial lawyer and would probably do a good job of simplying the government’s theory of the case. From what I know of him, however, I do not believe that he would be comfortable with the tactics that the Task Force has been using in the Enron-related prosecutions.
Tom,
Trust me, I know and understand why the government doesn’t want to indict everyone, but it has nothing to do with these people being favorable witnesses.
The government wants to hid and conceal the scope and extent of the criminal law. If the government charged everyone who was guilty in these cases, especially based on wilful blindness, such a series of indictments could lead to a large public outcry for changes, for the just following orders defense had broad appeal in these times. As proof, look at the emotion attached to some of the comments, recently.
Accordingly, the government very selectively prosecutes, just going after the top dogs.
Doing this also makes it easier to build future cases. The little fish, knowing they won’t be charged, cooperate in the early stages of an investigation.
However, doing such makes it very hard to put up a simple, direct, case-in-chief–witness the Barge case where no witnesses with first hand knowledge testified for either side.
The question asked was how to simplify the case.
You make a bad assumption–that you indict the 100 plus co-conspirators in the same case. You indict them in separate cases, even in different districts.
They are not about to ask for a joint trial. They are not going to testify for the defense. But, then to assure a fair trial, on voir dire, you ask the jurors is they have heard or read that so-and-so has been indicted. If a name subsequently comes up during the trial, the jurors will go “indicted” and fall back asleep.
This approach deals simply with the defense you raise in your reply which I call the HealthSouth Defense. The HealthSouth defense is to make something of all the uncharged but criminal people (known to the government)
The defense is just an old Percy Foreman/Morris Shenker/ early EB Williams trick–you try to try anything or anyone but the case against the defendant.
It is fun to read that you place Mark Lanier above the Enron Task Force
Actually, I think very highly of Mark Lanier, both professionally and personally. I just believe he has been disingenuous in the Merck/Vioxx case, and contributed to a litigation environment against Merck that has resulted in people being deprived of a valuable medicine that has relieved — and would relieve in the future — tremendous amounts of human suffering.