Enron Trial: Third Week in Review

The fraud and conspiracy trial of Ken Lay and Jeff Skilling resumes tomorrow. The courts are closed today for President's Day. As the trial enters its fourth week Houston Public Radio's Rod Rice reviews last week's proceedings with Nancy Rappaport, Dean of the University of Houston Law Center.

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The pace of the trial picked-up noticeably last week. Nancy Rappaport says Judge Sim Lake has a very good command and control of his courtroom.

He is going to strike the balance between making sure that the government and the defense both have enough time to present their cases without being redundant. And I think he's going to, for exapmle, pay a lot of attention to objections when things are redundant or have been asked an answered, and I think that he will alos keep everything moving so that the jury can continue to pay a lot of attention to what's going on.

Rappaport says moving things along is good for both prosecutors and defenders.

Both sides are trying to paint a relatively simple story--the stories are night and day different. But the idea is you will lose the juries attention the moment you make a complicated story out of a simple theme. So the government's simple theme is to allege that both defendants knew about this along and were complicit in it. And the defenses simple theme is two parts; one--no one did anything wrong and two--these two guys didn't know anything about any wrong doing that might of occurred.

So if both sides have a simple tale to tell, why will they need months to tell it? Rappaport says the reason is most trials have no moment when the truth dramatically presents itself. Rather, lawyers have to use witnesses to build inferences.

What you want to do as a good attorney is to make sure that all of these disparate bits of testimony tie back into your theme. Most good attorneys know exactly what they're going to do at the closing argument before the trial ever begins. And what they are doing is mentally keeping a check list--have I proven this, or if you are the defense has the government prove this. And so as all of these different t ways of looking at the facts come out at trial they're still going to try to relate everything back to their simple stories about it.

If testimony had a color, in this trial it would be grey--was it a lie or an interpretation of available information? Rappaport thinks the government will have to focus on the timing of deals as Enron spiraled downward.

Because the deals always seemed to happen at the end of a quarter or at the end of the fiscal year. The Defense will have to come up with a way to explain that other than earnings management.

Nancy Rappaport says the jury's job ultimately will be to determine if the defendants were trying to put a positive spin on the facts or to change the facts.

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