Mark Koenig's cross examination began Monday afternoon. Dan Petrocelli, Jeffery Skilling's lawyer, made a considerable effort to get the former head of investor relations to say or imply he wasn't guilty of the charges he'd pleaded guilty too. Adam Gershowitz says Petrocelli may have taken that tack because there are so many former Enron employees who have entered guilty pleas.
It's easier for the defense, perhaps, to try to tar the government, and say the government's tarred not just Koenig, but everyone else whose going to come down the pipe to pleading guilty by holding over them potentially huge prison terms and potentially huge fines and fortitures that come with it. It is really an unusual situation when you see the defense lawyer trying to get the hostile witness to admit he hasn't done anything wrong.
The other notable defense tactic has been playing hours of complete tapes of meetings, not just segments of the taped meetings that the government has introduced as evidence.
There are pushing to have everything kept in, nominally for the purpose of showing a complete picture of what happened. The other purpose is of course to make things more complicated and to slow down the trial which is beneficial to the defense and not beneficial to the government.
Gershowitz says Koenig has not been a smoking gun witness for either side but rather he's helped both sides put on an overview of their case through him.
Usually in a white collar crime there isn't a silver bullet and it's just a large fabric of evidence. This case might be a little bit different in that the silver bullet, to the extent there is one, might be when Ken Lay or Jeff Skilling gets on the witness stand. That may be the big moment in the case when the jury either believes these folks or it doesn't believe them.
Late in the week when Ken Lay's lawyer Mike Ramsey began his cross examination of Koenig he was admonished by Judge Sim Lake several times for the direction of his questions. Gershowitz says it is possible Ramsey wanted that reaction from the judge.
There is a school of defense lawyers who would say that is calculated. It's calculated to make him look like he's being the victim here and that everyone in the world is out to get Ken Lay and his lawyer and that he hasn't had a fair chance to defend himself.
Gershowitz says that can backfire if the jury turns out liking the judge better then the lawyer. He says the defense has also been making the point that Koenig has not met with them in their preparation for the trial. Gershowitz says there is nothing that the prevents such meetings.
The question then becomes are these people not talking to Skilling and Lay's lawyers because they really don't what to have anything to do whit them and they don't what to help them. Or is it that they are not talking to them because they have some kind of fear it's going to hurt their plea deal with the government and they are going to end up with a longer sentence. Hard to say which is the true answer, it might be a little bit of both.
Defense and government lawyers are expected to be through with Koenig in a day or so. The next government witness is expected to be Ken Rice, the prosecutions star witness in the trial of former Enron broadband executives.