THE ENRON TRIAL

This is one motion that's really on the table

Lawyers for Lay, Skilling ask judge to skip coin flip, give them coveted spot near the jury

By MARY FLOOD
Copyright 2006 Houston Chronicle

Enron's former corporate chieftains Ken Lay and Jeff Skilling do not want to call it heads or tails.

On Tuesday, they asked their judge to forgo a coin toss to see who gets the best courtroom table for their Jan. 30 fraud and conspiracy trial. They argue they have a right to the coveted table next to the jury because it offers the best view of the witness stand.

In a letter to U.S. District Judge Sim Lake, Lay's lawyer Mike Ramsey argued Lay and Skilling have a claim on the table to meet their constitutional right to "face-to-face" confrontation with the witnesses against them.

Ramsey argued that computer monitors, lawyers, clerks, case agents and the podium can get in the way from the other table where "by stretching and craning, the defendants might occasionally make eye contact with the witnesses."

This is about sitting at one table or at another � a few feet away.


Humanizing clients?

When Ramsey told Lake last week that he planned to ask for a halt to the coin flip, Lake kind of rolled his eyes and said he couldn't stop him from filing a motion.
But the prize here, in lawyer thinking, is the possibility that because you sit closer to the jury you are more humanized and they like you better and it gives you an edge. Trial lawyers love edges.

This table is so valued that young legal associates are frequently dispatched with piles of books to get dibs on this table hours before a jury arrives in civil cases.

David Berg, a Houston trial lawyer, once got in a physical fight trying to get the table.

"We get to court at 6 a.m. to stake out that table. It's one of the reasons why there's not much longevity for trial lawyers," Berg said.

He said he and Ramsey were schooled at a time when a local prosecutor, when sitting near the jury, was known to write scatological phrases on paper and show them to nearby cohorts when the defense made points.

He did so, Berg said, in a way nearby jurors might see also.

But Ramsey didn't argue that he wanted to humanize his client or that he fears jury tampering, though he does note a case he had in which a government agent "was caught, among other sins, slipping candy mints to the jury."

Instead, he argues, and is joined by Skilling's lawyer, that putting Skilling and Lay at the farther table "immerses them in a sea of blue suits and diminishes the nonverbal aspect of confrontation" mentioned in two U.S. Supreme Court cases about children having to testify in front of people accused of sexually abusing them.

The cases Ramsey cited split on whether the child witnesses can be screened or on closed-circuit TV to shield them from defendants. But both cases solidly confirm a defendant's right to face-to-face confrontation.

In the case denying a screen to shield a 13-year-old girl, Justice Antonin Scalia noted the phrase "Look me in the eye and say that" persists.


'It's just the way it is'

Though Lake, in the federal courthouse, offered a coin flip when both sides wanted the same table, in state court prosecutors automatically get to sit next to the jury.

Terry Wilson, a consultant to the Harris County District Attorney's Office, recalls in 1973 when he was a defense attorney just out of law school and sat down at the table closest to the jury. He was told by the prosecutor he had to move.

"I asked what made it his. He said, 'It's just the way it is.' The judge popped up and said the same thing," Wilson recalls.

State District Judge Caprice Cosper said in the Harris County Criminal Courthouse she could not find anyone who knew why.

She said people who had been around the courthouse for years figured that it might be because prosecutors were present more often and they got their books on the table first. Another possibility is that because the government usually presents the most witnesses in criminal cases, the prosecutors sat closer to the witness box and thus closer to the jury.

One lawyer surmised that some defendants in custody are considered physically dangerous and might be purposefully seated farthest away from jurors for safety concerns.

Kent Schaffer, a Houston criminal defense attorney, said it is perceived as an advantage. He agrees that if the jurors can see a defendant up close and personal, and in a likely four-month trial like Lay and Skilling's that could be especially important, they might have a harder time convicting them.

"The coin flip is pretty fair. I doubt the judge will back away from that. But if you don't ask, you don't get it," Schaffer said.

But as Wilson noted, there can be a drawback to being too close.

"A jury can sometimes be so close it can overhear co-counsel talking, that's not always what you want," Wilson said.

It has been my experience that the defense wants the far table and puts an attractive woman between the tattooed defendant and the jury.