Defense Attorneys Want To Move Enron Trial Out Of State: Mood In Houston Toward Company Execs Is 'radioactive'

With jury selection in the trial of former Enron chiefs Ken Lay and Jeff Skilling scheduled to begin in Houston January 30, their lawyers are insisting that the trial be moved out of state.

They don't think Lay and Skilling can find an open-minded jury in Houston, whose residents bore the financial brunt of the high- flying energy company's implosion four years ago.

"What we fear, in a situation as radioactive as this one, is that we'll have a so-called stealth juror," says Mike Ramsey, Lay's lead attorney, referring to someone secretly determined to find a defendant guilty.

"The most important thing we have to care about is a fair-minded jury, an unbiased jury," he says. "We've got to have jurors smart enough and brave enough to know that if they deliver a not guilty verdict, they're going to be asked about that the next day on the 'Today' show."

Of 280 potential jurors who were surveyed last year, 80 percent said they had a negative bias toward Lay, Skilling or both.

"That's huge," says Howard Varinsky, a veteran jury consultant who aided prosecutors of Martha Stewart and Scott Peterson. "If you get 60 percent, that's a lot, but 80 percent is near virtually everyone."

Rusty Hardin, the attorney who represented Arthur Andersen in the first Enron-related case to go to trial four years ago, says he's surprised at how controversial the Enron fraud and conspiracy case still is. "It remains to me, in 30 years as a prosecutor and defense lawyer, the most polarizing case I've ever seen with jurors."

Still, moving the case to Denver, Phoenix or Atlanta, as defense lawyers requested recently, might not solve the problem. "Are they any better off anywhere else?" Hardin asks.

U.S. District Judge Sim Lake rejected the defense's motion.

After a third defendant, former Enron accounting chief Rick Causey, agreed to plead guilty in late December, the defense team renewed its request.

They noted the 80 percent negative response among potential jurors was before Causey changed his plea. The "media maelstrom" afterward about how Causey's plea could hurt Skilling and Lay only reinforced a presumption of guilt, defense lawyers argued.

Instead of moving the trial, some jury experts agree with another defense motion asking that lawyers be able to question potential jurors without other juror candidates and spectators present.

Lake is planning to follow normal procedure for jury selection, or voir dire, where candidates are questioned together in open court. That will hurt the defense, say jury consultants, because people are reluctant to admit in front of strangers that they can't be fair.