Fair or not, Enron Corp founder Kenneth Lay and former CEO Jeffrey Skilling are used to being called crooks and liars in the aftermath of the scandal-ridden implosion of the company they once ran. What counts is whether a dozen people chosen as jurors in their fraud and conspiracy case agree.
More than 100 potential jurors were slated to pack a cavernous federal courtroom in Houston yesterday for the opening of the biggest criminal trial to emerge from the most sprawling corporate scandal in recent years.
"If we get 12 people who haven't made up their minds, we like our chances," Daniel Petrocelli, Skilling's lead trial lawyer, said after a flurry of failed defense efforts to move the trial elsewhere to escape a potentially hostile jury pool.
Michael Ramsey, Lay's lead lawyer, was less optimistic, calling Houston a "bad venue to try to pick a jury."
Skilling and Lay will be tried more than four years after what was once the seventh-largest company in the country crashed within weeks of revelations of hidden debt and inflated profits. The collapse left thousands jobless and slammed Wall Street with tens of billions of dollars in losses.
If 12 jurors and four alternates are seated by day's end as desired by US District Judge Sim Lake, the long-awaited trial of Enron's former top two corporate titans will get under way today. The biggest concern is choosing a panel that draws conclusions based solely on what they hear in court and avoids getting consumed with participating in the showcase trial, said Jacob Frenkel, a former federal prosecutor.
"These cases are not about books, movies and blogs. You have two corporate executives who are basically putting their lives in the hands of these jurors," he said.
Skilling faces 31 counts of fraud, conspiracy, insider trading and lying to auditors for allegedly lying about Enron's financial strength before the company crashed. Lay faces seven counts of fraud and conspiracy for perpetuating the alleged scheme after Skilling resigned in August 2001. Both have pleaded not guilty.
The judge will question the pool himself, having repeatedly rejected defense pleas to allow attorneys to individually question potential jurors. Lake will allow attorneys to inquire further of individuals based on initial answers.
"I'll ask the questions in a neutral, non-argumentative manner," he said.
More intense individual questioning could lengthen the process, but it also could unearth bias jurors do not know they have, said Howard Varinsky, a jury consultant who has advised attorneys on jury selection in several high-profile criminal trials, including those of Martha Stewart, Scott Peterson and Michael Jackson.
"The problem with high-profile trials is that you have jurors wanting to be on because it's their moment to interface with fame," Varinsky said. "They fool themselves into thinking they can be fair."
He said if jury selection ferrets out people in the middle, the verdict will be based on the evidence. "If it's done incorrectly, cases can be won or lost during jury selection," Varinsky said.
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