Daniel Petrocelli is no stranger to the national stage. But he's more at home representing entertainers such as Lisa Marie Presley and John Travolta than defending former corporate executives trying to stay out of prison.
The California attorney is acting as a criminal defence lawyer for the first time, on behalf of former Enron chief executive Jeffrey K Skilling, accused of leading one of the most complicated white-collar conspiracies in history. And as the defence prepares to begin its case on Monday, Petrocelli has emerged as perhaps the most potent factor on behalf of both his client and former chairman Ken Lay.
Both men face multiple fraud charges that could send them to prison for decades. There are two teams of defence lawyers, but during the prosecution's case, Petrocelli dominated the cross-examination of the government's witnesses, in part because Lay's top lawyer had health problems.
Defence lawyers are engaging in careful choreography in a trial where their clients' interests sometimes converge and sometimes conflict.
In the course of the nine-week-old trial, the defendants have displayed a few subtle disruptions in their alliance. But to the surprise of some legal experts, Skilling and Lay have stuck together for the most part, despite acute differences in their personal style and in the evidence stacked against them.
The critical question is whether they will point fingers at each other when they each take the witness stand in coming weeks. Of the approximately two dozen witnesses the defence expects to call, the defendants are far and away the most important.
The 52-year-old Skilling, who led day-to-day operations at Enron for years, will testify as early as the week of April 10th. Lay (63) will take the stand shortly thereafter, defence lawyers said.
In between, their defence teams will call lesser-known Enron employees to support their arguments that Enron was not a "house of cards" but rather a "shining star", as Petrocelli argued in opening statements.
"We're looking forward to getting on the stand and getting our case out there, get the positive case out," Lay told reporters earlier this week. His lawyer, Michael Ramsey, predicted that Lay will be his own star witness in a performance that "will win the case for us".
Skilling has remained silent, on the advice of his lawyers. They said they would do nothing to alter the demeanour of their client, who is known for his bluntness, in advance of his turn on the witness stand.
On cross-examination, prosecutors are likely to press both men about their knowledge of the company's financial troubles in August 2001, as Skilling departed and handed over the reins to Lay.
Skilling probably also will face questions about inconsistencies in more than 2,000 pages of sworn testimony he gave to the Securities and Exchange Commission and to Congress, including the reasons he sold half a million shares of Enron stock that September.
The defendants say they are operating at a disadvantage because important potential witnesses have signalled they will invoke their Fifth Amendment right against self-incrimination rather than testify. That leaves defence lawyers relying on documents and on such figures as Joannie Williamson, a former subordinate in the investor relations unit who went on to work for Lay.
Williamson, who is scheduled to be the defence's first witness on Monday, is likely to tell jurors that she heard her friend Mark E Koenig say he did nothing wrong at the company but pleaded guilty anyway under government pressure. That appears to contradict testimony by Koenig and supports a key defence argument: that company insiders did not believe they were breaking the law at the time, only coming to view their activity in that light under pressure from federal investigations.
The conspiracy counts against Lay and Skilling are based on the notion that they were in league with 16 other Enron executives who have acknowledged that what they did was wrong. So defence lawyers are attacking the credibility of those pleas. Each defendant will be allowed to call up to five character witnesses, a limit US District Judge Sim Lake said is designed to avoid jurors listening to the "whole panoply of Houston society". Lay had hoped to call the owner of the Houston Astros baseball team, a pioneering heart surgeon, a former Commerce Department secretary and several religious leaders.
In part because he is backed by a vast team of partners, associates, paralegals and researchers from his 1,000-lawyer firm, O'Melveny & Myers LLP, and more than $23 million in fees from his client, Petrocelli and his team have taken the lead for the defence.
Ramsey, the lead lawyer for Lay, has somewhat fewer resources at his disposal, relying on a team composed of Dallas securities lawyer Bruce Collins, prominent Houston appeals court specialist George "Mac" Secrest and former local prosecutor Chip Lewis.
In his four-decade career, Ramsey, a folksy litigator who bonds with local juries, has pulled out a series of victories.
On Lay's behalf, Ramsey has pursued a bold, all-or-nothing strategy, arguing that Lay should not be held criminally responsible for the failure of his business nor the optimistic statements he made in an effort to save it. In essence, the defence suggests that focusing on the positive to calm employees and the markets is common practice, even a duty, of corporate leaders.
Ramsey revealed on Tuesday that he had been suffering from heart problems at least since the third week of the trial and that he had a stent put in one of his arteries last week.
He had questioned fewer than a half-dozen of the 22 government witnesses before the surgery. As a result, the bonds between the Skilling and Lay defense teams grew stronger, as Petrocelli handled the heavy lifting, including the bulk of last week's cross-examination of former treasurer Ben F. Glisan Jr., even though Glisan provided more testimony about Lay than Skilling.
Perhaps most importantly, Petrocelli has won the confidence of US District Judge Sim Lake, who told the defence lawyer last month that "you're making a pretty good showing for yourself" in his first attempt at criminal defense.
Until the eight-woman, four-man jury renders its verdict, it is difficult to know how jurors are evaluating the lawyers.
- (LA Times - Washington Post service)
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