Position at Trial—Enron

Ken Lay and Jeffrey Skilling have filed a very interesting motion as their federal corporate fraud trial looms. They have asked US District Court Judge Sim Lake “to forgo a coin toss to see who gets the best courtroom table” for their January 30 trial.^[1] Arguing that they have a constitutional tight to have “the coveted table next to the jury because it offers the best view of the witness stand” Mssrs. Lay and Skilling have filed a motion, which—when first mentioned by Mr. Lay’s lawyer—elicited an eye-rolling from Judge Lake.^[2] Nonetheless, Judge Lake said “he couldn’t stop him from filing a motion.”^[3]

It sounds petty, but where the defendant sits is very important, and “computer monitors, lawyers, clerks, case agents and the podium” can obstruct a witness’s view of the defendant and proximity to the jury can make the defendant seem “more humanized” and more likeable.^[4]

One of the cases mentioned in support of the motion is Coy v. Iowa,^[5] a US Supreme Court case which dealt with the placement of a screen between the defendant—who was accused of two counts of committing lascivious acts with a child—and two complaining witnesses.^[6] The defendant argued that the screen violated his Sixth Amendment right to confront the witnesses against him, with which the Court agreed, stating “Look me in the eye and say that” is still a relevant phrase.^[7] However, the Court left “for another day … the question whether any exceptions [to the right to confront the accuser] exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy.”^[8] A number of trial appellate courts across the country have indeed found exceptions, and it will be up to Judge Lake to make a determination about the motion. It will be an interesting decision. He could, for example, decide that the defendant is not sufficiently obscured if, upon losing the proposed coin-toss to determine placement, the defense is placed further away from the jury. He could also decide that the placement of the parties is not an important public policy, and allow the coin-toss to proceed. He could decide that the placement is an important public policy and place the defendants nearer the jury.

No matter what Judge Lake decides, the defense has filed so many motions, and had a number of them denied, that even if Mssrs. Lay and Skilling are convicted, they will have a number of issues on which an appeal can be launched.

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[1] Mary Flood, This is One Motion That’s Really on the Table, Houston Chronicle, Jan. 18, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] 487 U.S. 1012 (1988).
[6] Id. at 1014.
[7] Id. at 1018.
[8] Id. at 1021.