Thursday, July 21, 2005

Deadlocks, Mock and Otherwise

We were surprised to learn yesterday of the government’s failure to nail any of the defendants in the Enron Broadband Services case, a failure that appears to have been abetted by a federal judge who was quick to declare a mistrial after jurors deadlocked on what the Houston Chronicle reported were the “168 decisions” (?!) on which they couldn’t reach unanimity (maybe the judge had pressing summer vacation plans?). We hadn’t been following the trial that closely, but a couple of years ago we served --- “served" isn’t quite the right word here --- on a mock jury for a mock trial of the EBS defendants.

Y’know, it was one of the deals where a firm of “experts” who help lawyers prepare for a trial recruits a bunch of locals to sit in a room, listen to a presentation of both sides of a case, then render a “decision” and give the lawyers feedback to help with their strategizing for the real trial. It’s played up as if it were some kind of reliable approach to trial preparation, but it’s really more like a visit to a carnival in a shopping center parking lot on the edge of town.

At the time, the prize tarpon in the case was Ken Rice, the youngish go-getter who had headed EBS. We didn’t admit it then, but we were anxious to whack Rice on the ass --- even if it were only a mock ass-whacking at a mock trial. We had met him once briefly on a social occasion years earlier, and we remembered him only because he was one of those people who scream “I’m a punk asshole” as soon as you shake their hand. Later, one of our ex-neighbors recounted these drawn-out debates she would get into with Rice over Ayn Rand. Yeah, apparently he, like Alan Greenspan, was at one time a big follower of the late author and social theorist. We wouldn’t be surprised if he had switched his allegiance to Jesus in more recent years, and we weren’t surprised when he copped a plea to securities fraud and agreed to testify against his onetime EBS underlings.

Our fellow mock jurors seemed even more predisposed against the defendants, or anybody and anything remotely associated with “Enron.” You would have thought that they all had taken a soaking on the company’s stock or had relatives who worked there. One old guy even pounded his fist on the table when he made what we thought was a strained comparison between Enron executives and Nazis. We don’t remember too much about the day --- other than that the food was good and they paid us in cash (thanks!) --- but we do recall thinking that it would probably be difficult to assemble an impartial jury in Houston for these EBS jokers.

For our part, we sorrowfully voted to find only a couple of the defendants guilty on only a few of the many counts against them. We think we did wind up tagging Rice on a couple of charges, maybe just because of our extreme prejudice against anyone who would blithely spout the philosophy of Ayn Rand without fully comprehending it.

But we tried to approach the entire production with an open mind --- maybe it was just a mock open mind --- and listen to the “facts” as they were presented. The lawyer for the “government” --- and we thought we recognized him as an ex-federal prosecutor, but maybe not --- did a terrible job of laying out the prosecution’s case (we’ll grant that the defendants and charges were many and confusing and the hours were short). It basically boiled down to, “These guys are guilty because we say they’re guilty.” So we and an older lady on our panel --- a gal whom we had quickly pegged as highly impressionable and easily led --- held out for acquittal on most counts. Everyone else was ready to hang the bunch right there, along with Ken Lay and Jeff Skilling, if they could be rounded up. There was no “deadlock” as such, most likely because the rental time on the hotel meeting rooms was up. Before being adjourned, we filled out a form giving our impressions of the case and the lawyers, and we remember writing, somewhat smugly, that we doubted the real government would present such a shoddy case.

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