Skilling’s fate in jurors’ hands

HOUSTON – Former Enron chief Jeffrey Skilling may be standing after his verbal boxing match with a federal prosecutor this week, but he took some sucker punches that could figure heavily into whether jurors in his fraud and conspiracy trial believe his claims of innocence.

But if even one juror believes him, he will win the match, experts said.

“That one vote for acquittal prevents him from being convicted,” said Jacob Frenkel, a former federal prosecutor. “The government only wins if it convicts him with votes of 12 jurors. All Skilling needed to do was put enough doubt in the mind of one juror to create reasonable doubt and prevent his conviction.”

As the 52-year-old former leader of the disgraced energy company said after ending almost eight days of grueling testimony in his own defense, it’s in the jury’s hands.

Soon, the same will be true for his co-defendant, Enron founder Kenneth Lay, whose own testimony begins Monday.

Both men are accused of repeatedly lying to investors and employees about Enron’s financial health, saying the company was strong while accounting tricks were being used to hide its weaknesses.

Lay and Skilling say no fraud occurred at the company other than that committed by several underlings who skimmed millions from secret side deals. They attribute Enron’s December 2001 descent into bankruptcy to bad publicity and lost market confidence.

Skilling faces 28 counts of fraud, conspiracy, insider trading and lying to auditors that stretches from 1999 through his resignation in August 2001. The six fraud and conspiracy charges against Lay pertain to the period between Skilling’s departure and Enron’s flameout.

In the first four days of Skilling’s testimony, defense lawyer Daniel Petrocelli led the ex-CEO through each criminal count against him. Skilling had answers for every one. Sometimes it was simply that the allegation wasn’t true. Sometimes he relied on complicated details to show that the allegations couldn’t be true because the issues weren’t as simple as the prosecutor portrayed them.

But Skilling lacked physical evidence to back up his claims, one of which was that his accusers either lied about incriminating conversations and meetings or misunderstood what was said.

Petrocelli laid the groundwork for the contentious cross-examination, allowing his client to say he was angry at the government for targeting an innocent man. Skilling had occasional flare-ups with Sean Berkowitz, a Chicago federal prosecutor who joined the Justice Department’s Enron Task Force two months before the ex-CEO was indicted in February 2004.

Under Petrocelli’s questioning, Skilling explained Enron’s complex businesses, appearing animated as he relived the halcyon days of the company he credited himself with building. In contrast, Berkowitz shot down his efforts to give detailed, complicated answers by demanding a simple yes or no. Sometimes Skilling complied, though he would indicate to jurors that there was more to tell.

“I think Berkowitz did an excellent job of keeping control of a very difficult defendant to cross-examine,” said Michael Wynne, a former federal prosecutor in Houston who watched much of Skilling’s testimony.

He said Skilling “put on a fairly good performance” and didn’t refuse to answer questions. But it appeared that when the ex-CEO hit a rough spot, he would say he didn’t remember or that an issue was complicated.

“I thought Skilling spent a lot of time trying to describe why two and two didn’t really equal four,” Wynne said. “And he suggested there were some people who got it and were smart, and some who didn’t. Maybe he was trying to do with this jury the same thing he tried to do with the public years ago.”