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Enron Jurors to Consider if Skilling, Lay 'Deliberately Ignorant'

Jurors who will begin weighing the fate of Enron Corp. founder Kenneth Lay and former CEO Jeffrey Skilling this week will be able to consider whether the men were "deliberately ignorant" and disregarded warnings about possible misconduct at the company, U.S. District Judge Sim Lake ruled last week. The 50 pages of jury instructions, which are used to apply to the facts in the case, will be given to the jury on Monday.

The prosecution, which successfully argued for the language, said in court papers, "You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him... While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact." The language will apply to both defendants.

Basically, the instruction tells jurors to consider whether a defendant may have had criminal intent if they intentionally did not ask what was going on when others asked questions. For instance, in the Enron case, some former executives testified that Skilling wanted certain quarterly earnings numbers changed to boost earnings and improve the stock price, but he allegedly did not ask how the numbers would be changed.

The defense unsuccessfully argued that the "deliberate ignorance" instruction was inappropriate because Lay and Skilling knew what was going on within the company -- but did not know about the alleged misdeeds by certain employees, including ex-CFO Andrew Fastow. In one pleading, the defense wrote, "The defendants have not asserted an ostrich defense...From the beginning we have argued, 'This is not a case of hear no evil, see no evil. This is a case of there was no evil.'"

The instruction, also called the "ostrich defense" or "willful blindness" in other court jurisdictions, has been the basis for some appeals. For instance, an appeal by convicted WorldCom executive Bernard Ebbers questions the "deliberately ignorant" instruction given to his jury. Ebbers is awaiting a ruling by the U.S. Court of Appeals for the 2nd Circuit.

Also under the instructions, jurors will consider whether Lay and Skilling could have had a "good faith" intention to fulfill their duties and "reasonably" relied on financial and legal professionals to make business decisions.

Closing arguments by the prosecution will follow Lake's instructions to the jury. The defense is expected to begin its closing arguments on Tuesday, with jury deliberations to follow.

Lay, who is being tried on six counts, and Skilling, who is being tried on 28 counts, are accused of fraud and conspiracy for lying to investors and Enron employees about the company's financial health. Skilling also is accused of insider trading and lying to auditors.

After jurors begin deliberations, Lake will hear a separate case against Lay without a jury. In this case, Lay is charged with four counts of personal bank fraud, including making false statements to banks. Each charge carries a sentence of up to 30 years in prison and up to $1 million in fines. Prosecutors allege Lay obtained $75 million in loans from three banks but reneged on an agreement with the banks that he would not use the money to carry or buy margin stock. The loans were collateralized by Lay's Enron stock. The four charges originally were part of the case now before jurors.

On his website (www.kenlayinfo.com), Lay wrote, "The remaining four charges in my indictment relate to personal banking charges, which are based on arcane laws initially enacted during the Great Depression. These four charges have nothing to do with Enron. My legal team can find no record during this law's 70-year existence of these provisions ever being used against a bank customer (like me) until now."

In other news, Mike Ramsey, Lay's lead lawyer, expects to help with closing arguments this week. He has been gone for more than a month because of heart problems.

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