Off To The Races!
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The moment of drama, such as it was, came early. A little after nine in the morning, on the first day of the rest of their lives, former Enron executives Kenneth Lay and Jeffrey Skilling, now felony defendants, were asked by U.S. District Court Judge Sim Lake to stand up and introduce themselves to potential jurors in this conspiracy and fraud case. Lay stood up at the far right of the courtroom. Skilling stood up from the middle left. And with the courtroom carpet blue with large white dots the defendants for a moment looked like bishops on a giant chessboard as they grinned uneasily at the men and women who likely will determine their fate.
Judge Lake, sitting in front of a large marble wall in his high-ceiling courtroom, quickly told jury candidates that they might play the key role in "one of the more interesting and important cases ever tried" by "some of the finest lawyers" in the country. And he told the group of about 100 citizens, who crowded into the "visitors" section of the courtroom, that they could not be guided by their preconceived notions of the case or by their own ideas "about what the law is or what it ought to be." He asked them, finally, if any could not put aside whatever they knew about Enron and judge the defendants solely upon the evidence at trial. No one said a word.
That's how jury selection started Monday for the two men who inhabited the top of the Enron mountain for many years before it imploded under the weight of its own debt and deception. It ended hours later with the finality and certainty that the judge had promised — 16 Houston residents (12 jurors and four alternate jurors, 10 women and six men) selected to sit in judgment on two men who did so much to shape their city's destiny over the last decade. For a trial that is expected to last until at least April, in a city that has suffered so much from Enron, and with the two men facing what might end up being life sentences, it was an extraordinary quick selection process that is sure to generate lingering questions of fairness no matter what ultimately happens at trial.
Aside from their brief interaction at the start of the day, Lay and Skilling were passive participants in the day's events. They sat at different tables in court but faced one another in a scene reminiscent of the photographs of the giant table in a grand conference room once used by Enron's board of directors. How many times did Lay and Skilling sit in a large room across a big expanse of table and face each other when times at the company were flush? How many disastrous decisions did the pair sign off on during those board meetings? How many warning signs did they miss or ignore? How much greed and arrogance did they emit?
And yet here they were again, sitting a big room, flanked by men in suits, forearms on the table, trying to look calm while their world gets turned upside down. The only difference now is that they no longer have any control over what happens. The bosses of Enron, the men who thought they could do no wrong, now have to listen to their lawyers, and obey the judge, and pray that jurors give them the benefits of all reasonable doubts. If Lay and Skilling were as humbled inside as they appeared to be on the surface Monday, then surely it was a huge shock to their egotistical systems. Win or lose these men never will win awards for self-doubt or humility.
There weren't any surprises during jury selection — at least no surprises that were immediately apparent. After about a half hour of open-court conversation in the morning, the judge began to question individual jurors for a few minutes at a time, microphones turned off, with prosecutors and defense attorneys in front of him at the bench. This is where the true work of jury selection took place, for hour after hour, and yet we do not know, and will not know for quite some time, what the judge was asking potential jurors and what they, in turn, were answering. It's hard to blame the judge for closing off this part of the process, where so much personal, private information about a person can be exposed. I mean, it's hard enough being a juror these days without having to explain your moral beliefs about guilt and innocence to the entire world.
From the judge's early-morning remarks to potential jurors while they still were assembled as a group, it's clear that there are still some in the pool who wrote nasty things about Enron or Lay or Skilling in their jury questionnaires. That these folks weren't automatically rejected by the judge suggests that he believes he can "rehabilitate" them into becoming the sorts of jurors who will listen fairly to the evidence and follow the judge's commands about the law regardless of how much anger they have expressed about the defendants and the company they once ran. Don't believe everything you read in the papers or see on television, the judge told jurors, in other words don't believe everything you've ever heard about Enron.
So was jury selection a success? It depends upon what your definition of "success" is. If success is measured by the speed and efficiency of selection the day's work seemed well-founded. The judge was smooth, in command, and quite obviously capable of handling a roomful of lawyers, journalists and jurors. That bodes well for the months of testimony that is to come. But if success is measured by other means, like, say, whether the judge was able to weed out potentials jurors who have it in for Enron and the defendants, then the answer surely is more murky. As they used to say about Jeff Skilling, the judge may have been wrong today but he certainly wasn't in doubt.
By Andrew Cohen