The trial has been in recess since the prosecution rested its case Tuesday morning. Nancy Rappaport is Dean of the University of Houston Law Center. She says the time off has given defense lawyers time to pour over all the evidence presented so far so they can aim for a delicate balance in the weeks ahead.
"The balance between trying to question the credibility of the prosecutions witnesses without looking as if they're nit-picking, because the jury is going to be very impatient with nit-picking."
Judge Sim Lake granted the defense request for the short break with the stipulation the defense would take only four weeks to present its case. Dan Petrocelli, Skilling's lawyer and Mike Ramsey, Lay's attorney said they'd try. There is a list of about a hundred potential defense witnesses, but only about a quarter are expected to be called the to stand. Rappaport says the defense has spent the days away from trial shortening the witnesses list.
"Now what they're going to do is they're going to go back to what their version of the story is going to be, and they're going to say who can best paint both a response to the prosecutions case and tell our story as clearly as possible. Our story was we didn't know, it wasn't us, it was Andy Fastow."
Dean Rappaport believes at some point the defense will have to answer the jury's unanswered question...if they didn't know, why didn't they know? She also says they jury will probably not want too many character witnesses; two, perhaps three should be enough. The question is how affective is a character witness? Would anyone expect the defense to call someone who didn't think their client was a sterling person?
"This may be part of the myth and the lore of trial advocacy. I'm not sure either if character witness make a difference at this phase. If the prosecution wins and they have to go into sentencing that's where it's useful."
Ken Lay and Jeff Skilling are expected to testify and that says Rappaport is always a risk because while the jury may like and believe them, the opposite is also a possible outcome.
"So it's always a bit nerve racking, but given that the prosecution did a good job of at least setting forth a likely believable scenario, I understand why they want to testify. And frankly, they've always been in control of their own fate before it would be very hard to talk people of this stature into not testifying but it's risky, it's very risky."