Wednesday, December 14, 2005
The new defense style for CEOs is to be bold, be out there, and don't hold back. After all isn't that what innocent people do?
Well that is exactly the way Ken Lay is handling his case. He announced yesterday that he would in fact take the witness stand at trial. (See Wall Street Jrl here) He states on his web page here "I will testify at my trial. I will do my very best to get the truth out."
This is a rather strange statement to make prior to the prosecutor proving or perhaps not proving their case. More importantly, will his public statements come back to haunt him when he is eventually cross-examined?
And yes, then there is the other problem of whether he will be the only witness at his trial. The claim has been made by the defense that the prosecution is keeping witnesses in a silent mode. Prosecutorial power gives prosecutors an enormous power in this regard. They can keep people in a status of not knowing if they are a target, subject, or witness, unless of course they are called to testify and then given an advice of rights form. And if a witness does something that the government doesn't like, they may suddenly move the person to a new category and before you know it, that individual may find themselves moving from a witness to center-stage as a target of the investigation. Ken Lay is correct when he states that:
"By letting each one of those individuals know that they are literally only the stroke-of-a-pen away from being indicted—an enormous incentive for each of them to do everything possible to please the prosecutors and not be thrown into an expensive legal battle to defend themselves."
Finally, Ken Lay claims that what occurred here was "typical business activities." And he says that "[a]s was the case in the Arthur Andersen trial, the Enron Task Force is again attempting to criminalize" this type of conduct. There has clearly been a shift in recent years to criminalizing business conduct that may previously not have been the subject of prosecution. But was everything that happened at Enron really "typical business activities?"