Time To Move Enron Case

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Those harsh verbatim judgments about Lay and Skilling — and many, many, many other less-than-smoochy descriptions — were found in lengthy questionnaires completed by potential jurors in the looming fraud and conspiracy trial of the Enron Two. That trial, the mother of all corporate fraud trials, is set to begin at the end of the month in Houston. The defendants now are citing those statements, and other reasonable legal arguments, as proof that they cannot get a fair trial in Houston. They are right — and it's not even a close call. It's time to move the trial.

Indeed, if ever a change of venue were appropriate and necessary to ensure fair justice it is in this case, where two icons of corporate greed and excess — neither of which is a crime, by the way — are fighting for their liberty in the very place where they rose and then fell with astounding visibility and visceral impact. As defense attorneys noted in their venue request filing earlier this week, "Houston stands along in the nature, extent and intensity of the interest in this case. Unlike any place else in this country, the Houston community feels uniquely betrayed and ashamed by the demise of Enron…"

How many thousands of people in and around Houston were directly affected by Enron's collapse? How many tens of thousands of people in the area were indirectly affected by it? How much money was lost? And how did those losses, even years later, affect popular impressions of the two men? Thanks to the jury questionnaires, we now don't really need to guess. Defense attorneys claim that of the 280 questionnaires "the parties received from the Court, an astounding 80 percent exhibited strong biases against defendants."

That ought to be more than enough to convince U.S. District Judge Sim Lake that the wisest course of action is to move the trial to any of Texas' other big cities — there are plenty to choose from — or to another state. Indeed, it ought to be enough to convince prosecutors that the trial needs to take place away from Houston. Now that the questionnaires have come back filled with such vitriol, even government lawyers should be candid and fair enough to concede that the defendants' constitutional rights to impartial jurors are severely jeopardized and should not be tested in order to give the Houston "community" its chance to dispense "justice." There is no justice when jurors believe the defendants are crooks before the first witness has been called.

Here, according to the defense motion, is what potential jurors had to say about Skilling; they described him as "the devil," "a thief,", "a cheater," "brash, arrogant, and conceited," "dishonest," and "without a moral compass." Lay, meanwhile, was described as a "low down scumbag," "crooked," and "a snake in the grass" who "made too much money by screwing other people over." Remember, this is what potential jurors who haven't yet been rejected from the jury pool were willing to write down, knowing that a judge and the lawyers in the case would read their words. Imagine what they really think about the men who face serious prison time if convicted! The filing, and the current atmosphere surrounding these defendants, reminds me of the line in the old Western: first we'll have a trial and then we'll hang 'em.

Defense attorneys also are focusing, quite rightly, on the recent plea deal by Richard Causey, another former Enron executive, who was about to go to trial along with Lay and Skilling before he became, just last week, a prosecution witness. Potential jurors — the same ones who already hate Lay and Skilling — would have more reason to follow media coverage of the Causey deal to the detriment of the remaining defendants. "All such jurors," Lay and Skilling now argue, "can be expected to draw the inference — forbidden by law, but common for laypersons — that because Causey pled guilty, his former co-defendants … must also be guilty." The Causey plea, alone, doesn't merit a venue change. But taken with what we now know about the negative perceptions potential jurors have about Lay and Skilling, the Causey development makes a trial transfer a legal no-brainer.

Right now this case reminds me of two other high-profile cases, the Oklahoma City bombing case and the Beltway sniper case. Right now it's not hyperbolic to say Lay and Skilling are (in a non-violent way) to Houston what Timothy McVeigh and Terry Nichols were to Oklahoma City in 1995. When McVeigh and Nichols sought a change of venue, however, they had not been the subject of numerous books and movies, as the collapse of Enron has generated. And there had been no plea deal for "John Doe 2" as there was with Causey. If under federal law McVeigh and Nichols deserved a transfer out of Oklahoma City, it seems to me that Lay and Skilling deserve a transfer out of Houston.

Likewise, the Enron case now is positioned somewhat like the Beltway sniper case was a few years ago. Back then, defense attorneys for Lee Boyd Malvo, the younger of the two suspects, argued that the mass fear and disruptions caused by the Beltway shooting spree contaminated the jury pool to the point that a transfer was required. That defense request was rejected but it was a close call. In the Enron case, just substitute the practical loss of pensions, and jobs, and hopes, for the ephemeral fear and the annoyance of massive traffic jams caused by searches for the snipers, and it's not hard to understand why the Houston community is no place for these men to be judged.

Judge Lake should not try to force this trial through the prism of prejudgment that the questionnaires establish. Nor should prosecutors try to pretend that the level of anger toward Lay and Skilling is typical and capable of being overcome by stern instructions from the judge at trial. The venue provisions in federal criminal law exist for precisely these sorts of cases and any conviction of these men following a trial in Houston will be legally suspect. So why bother taking the chance?

If prosecutors are as confident about their case as they say they are, they should be willing, even eager, to try Lay and Skilling anywhere in the country. And if Judge Lake is true to his duty to ensure fairness at trial, as well as to be sensitive to the enormous emotional and practical costs a trial like this generates, he should quickly realize that there should only be one trial for Lay and Skilling, in a more neutral place, at a later time. Sometimes, the right thing to do, in the law and in life, is to play it safe. Transferring this trial would be playing it safe.

Lay and Skilling may not deserve much kindness or respect. But they certainly deserve to be judged by people who have open minds and who are willing to give them the benefit of any and all reasonable doubts. I don't blame Houston for being angry about what happened with Enron. But it's that very anger that requires the judge to protect these men at this time. They deserve their day in court. And the rest of us deserve to be able to look at the ultimate verdict in the Enron trial with pride and confidence.

By Andrew Cohen