The case against two top Enron executives goes to the jury today after 15 weeks of testimony. The Christian Science Monitor says that U.S. District Judge Sim Lake “stunned the legal community” when he told the jury it may find Enron founder Kenneth Lay and CEO Jeffrey Skilling guilty of simply ignoring red flags about criminal conduct at the company – being “deliberately ignorant” – instead of being involved in the wrongdoing. “It’s an extremely severe instruction, and one that’s a very, very hot topic in the federal circuit right now,” says Gerald Treece, assistant dean of the South Texas College of Law in Houston.
Several high-profile white-collar convictions have been reversed on this issue at the circuit court level. In the Enron case, “this jury instruction will be the most fruitful area for reversal; it’s a ticking time bomb for the prosecution,” says David Berg, a Houston defense lawyer and author of “The Trial Lawyer: What It Takes to Win.” “In every circuit in this country,” he adds, “judges are emphasizing the need to prove that a defendant intended to commit criminal acts, not simply ignore them.”