are set to begin Monday and are expected to last until Wednesday in the fraud and conspiracy trial of former Enron Chairman Kenneth Lay and his former CEO, Jeffrey Skilling.
Because you likely won't get to federal court in downtown Houston to actually see and hear the arguments, and because those arguments will last for hour upon hour, I thought I would offer you a likely (and brief) preview of each.
For the prosecution: Thank you, folks, for your service during this long and often complex case. When we first addressed you directly, all those months ago, we promised you that we were going to prove beyond a reasonable doubt that these two defendants were too smart, too savvy, too successful, and too controlling to have been uninvolved in the massive fraud that went on at Enron, the fraud that cost so many people so much.
We delivered on that promise, ladies and gentlemen, and if you didn't believe our witnesses - the caravan of former Enron officials who came before you pointing fingers at the defendants - then believe the defendants themselves.
They testified in this case, day after day. You heard them answer hundreds, even thousands of questions from our side and from their own lawyers. Did they give you the impression, ladies and gentlemen, that there was a whole lot going on at Enron that they wouldn't have either been aware of or involved in?
When Jeffrey Skilling was explaining Enron's businesses to you like he was your professor, did you get the sense that he didn't know about Andrew Fastow's secret deals? Did you get the sense that he is the type of fellow who truly can't remember important business meetings where crucial decisions are made?
Don't you think that when he said "They're on to us" to his colleagues at Enron he wasn't making a joke?
And what about his boss, Ken Lay? He told you that Enron's trading business depended upon the confidence of investors and the credit markets. What does that tell you about the lengths to which Mr. Lay was willing to go to ensure the company oozed confidence even as its losses mounted due to bad business decisions?
And are you satisfied with the answers Mr. Lay offered you when he was asked why he was telling his employees to buy or hold Enron stock at the same time that he was dumping his? Given his demeanor on the witness stand, the way he lit into us, do you really think this man was completely above the fray at the company he founded and loved?
The defense is going to stand up soon and tell you that our case is all about sound and fury but signifies nothing. These lawyers here will tell you that there is no smoking gun in this case, no foolproof testimony that you can rely upon to convict these men.
Well, guess what. That's not a surprise in a case like this. Any guys smart enough to run Enron are smart enough not to write an e-mail, or otherwise record an order, that would later incriminate them. And you know from living in the real world that conspiracies can be proven without a certified videotape of the conspirators gathered together to plan their crime.
That's why we brought before you Enron witness after witness to testify about what truly went on at Enron and what the defendants truly knew about it.
We brought you David Delainey, an executive at Enron, who told you that Skilling and his colleagues lied about the company's finances. We brought you Wesley Colwell, one of the chief accountants at Enron, who told you that he raided the company's reserves to increase earnings' reports because he believed that's precisely what his superiors at Enron wanted and needed him to do. And we brought you Andrew Fastow, the former chief financial officer, who directly linked these defendants to these crimes.
Ask yourself about the odds of that being true; ask yourself about the coincidence that would have to be underway here for us to have tried the only two innocent men in all of Enron's collapse. You don't have to leave your common sense at the jury room door, folks.
For the Skilling defense: Folks, those prosecutors stood up a few months ago and told you they would link my guy to the crimes here. And now they are standing up and saying that Jeff should be convicted and spend the rest of his life in jail because he should have known about the crimes being committed by crooks like Andy Fastow.
This is the ESP case, folks, because the government wants to convict my guy because he couldn't and he didn't read minds. He didn't read Fastow's mind. And he didn't read the minds of the accountants who supported what the company was doing. And he didn't read the minds of the lawyers who supported what the company was doing. And he didn't read the minds of the investors when they bailed on Enron. He didn't read minds so he should be a felon.
Jeff testified for day upon day. He took the government's best shots and he never lost his cool and he answered every question. He had a reasonable explanation for everything.
Now, you may not agree with every one of those responses. But that doesn't mean the feds deserve their conviction. There was not a single piece of paper in this case that reveals that Jeff committed a crime.
There was not a single, credible, independent witness who came before you to report that Jeff did anything wrong. As crazy as it now sounds, with the benefit of hindsight, Jeff still thought late in the game that he could turn Enron around. And he just might have - despite all that was wrong with the company. Just because there was a crime here doesn't mean that everyone was involved.
For the Lay defense: Thank you, folks, for your time. This isn't nearly as complex a case as the government would have you believe. Did Ken Lay do everything he should have done to ensure that Enron was run better? No. Did he give too much power and authority to his subordinates and not get involved enough in the details of the deals? Perhaps. Did he abide by the letter of every ethics rule at Enron? Probably not.
But there is simply no proof that he engaged in the fraud that's been uncovered at Enron. And this idea that he should be convicted because he should have known about the fraud, that he was "deliberately ignorant" about the crimes here, is absurd. Anyone who loved Enron as much as Ken Lay did would not have deliberately done anything to harm it.
I want to say one other thing to you. You probably noticed that Ken was feisty on the stand. Please don't take that as arrogance or defiance or anything other than his desperate attempt to convince you that he has committed no crime here. He told you himself that he is "fighting for my life" here and I would suggest that any of you, blamed for crimes that all of us know other people committed, would react the same way.
Ken isn't asking for your pity. We know there are victims of the Enron collapse who are far worse off than he is, despite all that he has lost.
What he is asking for is for you to put aside whatever anger you have about what happened and to look only at the evidence.
And when you do, folks, you'll see that the conspiracy never reached Ken Lay.
It never reached him because the men and women involved in it knew that he would not have tolerated it. That's the sort of man we have here. Not the sort of man who deserves to die in prison.
By Andrew Cohen