Lay's aggression could hurt his case

Seen as charmer before testimony

HOUSTON -- Enron founder Kenneth Lay was expected to charm jurors the same way he spent decades charming politicians, analysts, investors and employees.

But when he took the witness stand last week in his fraud and conspiracy trial, the ever-smiling diplomat and philanthropist morphed into a scrappy fighter.

First he tried to take control of questioning by his own lawyer. Then he repeatedly bristled, snarled and quarreled on cross-examination with the federal prosecutor who had secured the indictment against him.

His transformation was in stark contrast to that of his co-defendant, former Enron CEO Jeffrey Skilling, whose lengthy testimony preceded his own.

Rather than erupt like a volcano, Skilling simmered. But Lay's unexpected aggression and the government's portrayal of him as an arrogant elitist who treated his company like his personal bank could damage some or all of whatever good will he may have had with jurors, experts said.

"Skilling did better than everybody thought he was going to do, and I don't think Lay has done himself any favors," said Gary Brown, a securities lawyer who was special counsel for the Senate Committee on Governmental Affairs during its 2002 investigation of Enron's 2001 collapse into bankruptcy proceedings.

Conventional wisdom said Lay, whose testimony will continue today, entered the three-month trial with the better chance of acquittal than Skilling. He faces six narrowly focused criminal counts to Skilling's 28.

Skilling's lawyer led him through his testimony in a dance they swear wasn't choreographed. Lay quickly established that he was in charge during his testimony.

"I'm not done yet, Mr. Secrest. I told you, this is not simple," Lay told his lawyer, George Secrest, when the attorney tried to interrupt the ex-CEO's meandering description of what he says killed Enron: a lethal combination of bad press, colluding short-sellers in a bear market and a greedy, thieving chief financial officer.

"This is looking like a textbook case of the dangers of putting defendants on the stand," said Sam Buell, a former member of the Justice Department's Enron Task Force who now teaches at the University of Texas School of Law.

Lay acknowledged calling two potential defense witnesses during the trial to see if their recollection of a meeting matched his. Lay also admitted trying to get in touch with a government witness just nine days before he testified.

Buell called Lay's actions "unseemly and a bit shocking," and said they defy some of the most common edicts defense attorneys give their clients: Don't talk to anyone involved in the case.

"It can only hurt the defendant. Even if it's something that's not done with bad intent, it looks bad," Buell said. "Lay either didn't get that advice, or he got it and he ignored it."