Friday, April 21, 2006

There Are No "Perry Mason" Moments in White Collar Crime Trials

Former Enron CEO Jeffrey Skilling concluded almost two weeks on the witness stand, and next up will be his predecessor and successor, Ken Lay.  The cross-examination produced no bombshell moments, and few if any concessions by Skilling regarding the themes brought out in his direct testimony.  That is unsurprising because Skilling spent a significant amount of time preparing for his testimony, including the cross, and it is unlikely he would deviate from the plan for presenting his position that Enron was a strong, viable company when he left as CEO in August 2001.  While media reports note that Skilling maintained his position in the face of tough questioning by the prosecutor, that is hardly news.  In the same vein, questioning about his investment in a photography company run by a former girlfriend has been portrayed as irrelevant to the underlying fraud at Enron, a point raised by Skilling himself ("What does this have to do with fraud at Enron Corporation? Just out of curiosity.") (see Houston Chronicle Trial Watch blog here).  Yet, the case rests on the credibility of the witnesses for both sides, and there are clear disputes whether certain discussions took place or whether a comment by Skilling was meant to be facetious (the "Mr. Bill" response about whether "they're on to us") or serious.  Whether a witness is truthful is not limited to just the testimony on direct examination, but can include other business dealings that affect the company, in much the same way that the plea agreements of government witnesses are relevant to their credibility.  The jury's determination of which witness(es) to believe will not be based on a single line of questioning, although small moments can take on great meaning during the deliberations when the jury makes its final decision on who to believe.  Any assessment of the effectiveness of Skilling's testimony now is pure guesswork.  An AP story (here) and Reuters story (here) discuss Skilling's testimony. (ph)

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