Time To Move Enron Case

Enron founder Kenneth Lay speaks at a Houston Forum luncheon Tuesday, Dec. 13, 2005 in Houston. Lay, his CEO successor Jeffrey Skilling and the company's former top accountant, Richard Causey, are scheduled to go on trial Jan. 17, more than four years after the company that made them multimillionaires crumbled. (AP Photo/David J. Phillip)
AP Photo
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Apparently you are not alone if you think that former Enron CEO Jeffrey Skilling is a "high-class crook" who "would lie to his mother if it would further his cause" and that Enron founder Kenneth Lay may be "the biggest lying crook of all" who "did a lot of injustice to a lot of good people." And if you think you are the only person in the world who thinks that Lay is "guilty without any doubt" and that Skilling is "the biggest liar on the face of the earth," then think again.

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.