Monday, May 8, 2006

Skilling/Lay Trial - Defense Rests

The defense ended its presentation of witnesses in the Skilling/Lay trial followed by courthouse step comments on their inability to present some witnesses that they wanted the jury to hear.  According to the Houston Chronicle here, Skilling's attorney Dan Petrocelli was unhappy that witnesses had not testified for the defense out of fear of being indicted by the government.  It is rare that the defense receives the immunity grants provided to the prosecution.

The Wall Street has a wrap-up of the trial here.  The court denied the defense motion for acquittal and a written order on some issues is expected later today.

Closing arguments are set to begin next Monday.  What is likely to happen during the next few days is for the parties and judge to determine the jury instructions that will be read to the jury.  Typically a court starts with a set group of instructions, oftentimes instructions that all agree upon, standard pattern instructions. From there the disagreements will become issues that are likely to be appellate issues if any of the parties are convicted. 

A crucial issue on the instructions will be whether the court decides to give an instruction on willful blindness (see Professor Peter Hennings prior post here).  I would add one item to that post. The defense presented a case saying that Ken Lay did not do the acts, but rather it was the work of Andrew Fastow.  The government's case has been premised on the defendant allegedly being untruthful. They have presented a case that is not focused on the presentation of intricate numbers and accounting practices that sometimes are used in white collar cases.  Should the prosecution be allowed a jury instruction such as this when their case has built the intent upon the statements that the defendant allegedly made to the public and employees at Enron as opposed to inferring from these statements that the defendant had knowledge of what was going on in the company?  Should willful blindness be allowed when the government has not presented a case of an ostrich hiding its head in the sand, but rather a case that the ostrich was out there on a soapbox deliberately telling lies to people.   


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