Before the trial began in Houston, Petrocelli (attorney for Jeff Skilling) outlined a strategy for the defense: the transactions were legal, Skilling (and Lay) obtained the advice of professionals for the more complicated transactions, and these types of transactions are routine and legitimate. As I said in a previous column, these tactics might prove successful. For whatever reason, the defense deviated somewhat from this plan.

The defense team did claim that the transactions were legal and that corporations engage in complex, securitized transactions all the time. So far so good. The defense, however, changed its collective mind and did not pin the blame on its counsel, Vinson and Elkins, or on its independent auditor, Arthur Andersen.

That some of the transactions were legal could be conceded by prosecutors; the real question is whether all of the transactions were legal. Petrocelli and Ramsey (attorney for Lay) did not attempt to pursue this issue. That all major business enterprises utilize special purpose entities may be a fascinating tidbit on this topic, but, on its own, does not begin to deflect the serious charges.

I thought the best defense involved an attempt to transfer responsibility from Lay and Skilling to Vinson and Elkins and to Arthur Andersen. Lay and Skilling could easily contend that they were not the experts. They and their subordinates devised these complex transactions, but always with the approval and the constructive criticism of their expert advisors. Always with their advice and consent. If the jury wanted to find the ones responsible for Enron’s collapse, they needed to look no further than Arthur Andersen, already found guilty of obstruction of justice, and Vinson and Elkins, now under investigation for its role in the Enron shenanigans. I always thought this point would resonate with the jurors. For some reason, the defense counsel dropped that idea.

Moreover, Petrocelli and Ramsey raised three other arguments, all wanting to some degree. They stressed that others were engaged in the various frauds, including Fastow, Glissan, and Kopper. While Fastow, Glissan, and Kopper did play their roles in this play, I doubt that they jury would believe that they constituted the entire cast of characters.

The defense also claimed that there was a "run on the bank," a concept that harkens back to the Great Depression. The idea itself is a silly one, for Enron's stockholders could hold on to the stock if it had value, and that includes Lay and Skilling. Even if the assertion had merit, it would not resound with the jury. Indeed, it is doubtful whether even one juror knows what they meant by the term.

Finally, the defense raised issue with its press coverage. Besides being beside the point, it sounds too much like a president in trouble. Nixon in Watergate, Carter trying to fix an economy, Reagan with Contra-gate, Clinton and Monica-gate, and Bush with Iraq-gate: they all claimed that the press was hounding them and presenting misinformation. The public had, and continues to have, difficulty swallowing these claims by presidents. In similar fashion, I think the jury will laugh at this contention by Lay and Skilling.

Maybe things will turn out OK in the end. Maybe we shall get justice after all.