Feds Should Make Enron Close Short and Sweet

Things did not go the way the big-shot attorneys hoped it would during the 15-week long fraud and conspiracy trial of former Enron honchos Kenneth Lay and Jeffrey Skilling. For federal prosecutors, the case against the two men wasn't nearly as strong and seamless as they thought it would be. For Lay's team, their client's ornery performance on the witness stand was the precise opposite of the way they had sought to portray him to jurors. And Jeffrey Skilling was so brilliant on the stand that his counsel will have a hard time portraying him as an ignorant bystander to what went wrong with the company.

That's the sorry state of affairs the lawyers find themselves in as they prepare to deliver their closing arguments today on into Wednesday. Prosecutors get six hours to make their last best pitch and lawyers for Lay and Skilling have three hours each. When you consider that U.S. District Judge Sim Lake completed jury selection in less than one day -- even though potential jurors had awful things to say about both Lay and Skilling -- the charitable expense of time for closings is as remarkable as it is infuriating. In high profile cases, especially, jury selection at a minimum should at least take longer than the summations.

Think of what it takes to sit through a six-hour movie, even an exciting one. Then multiply the fatigue and boredom factor by about a million. Now you have a sense of what it is going to be like for the jury of eight women and four men over the next few days. After a long and often tedious trial, the panel is in for the longest and most tedious part yet. Jurors will have to sit through hour after excruciating hour listening to the lawyers drone on about this witness, or that theory or the other side's documents. And then, when the day is done on Monday, they will have to go to sleep knowing that they are in for at least another full day. Think of how much of the Bible you could read in 12 hours straight. Think of how much Harry Potter.

It doesn't have to be that way, though. Especially for prosecutors, there is no reason to spend their entire allotted time trying to explain the Enron case to jurors. There is no case that warrants a full day's worth of lawyer-speak. On the theory that a strong case sells itself, and that good evidence is self-evident, any case that requires six hours of summary and argument can't be a very strong case to begin with, right? If I'm a prosecutor here, I give back a major portion of my time and I make sure the jury knows it. Remember, the transcripts of closings arguments are not considered evidence and thus aren't allowed into the jury room during deliberations. Moreover, closing arguments rarely win the day, anyway.

The government will get its convictions if jurors believe the cadre of former Enron executives -- many of whom made plea deals with the feds -- who came to point fingers at Lay and Skilling. And it will be in better shape to win if those same jurors do not believe the testimony of the defendants themselves, who testified doggedly but with mixed results. The closing arguments for the feds have to focus upon the flip sides of that coin.

So that means that Enron Task Force prosecutor Kathryn Ruemmler, who gets to bat first for the feds on Monday, should keep it simple when she reminds jurors of all the reasons why prosecutors believe their core witnesses are credible, reliable and accurate. Nothing Ruemmler is going to say is going to change the jury's perceptions about Andrew Fastow, for example. Either the panel now believes the former Enron CFO when he told them that Skilling was in the loop on the fraud at the company or it does not. Either they believe he testified to set the record straight or they think he's the rat the defense say he is -- and nothing Ruemmler is likely to say is going to alter those beliefs.

Either the jury believes former Enron executive David Delainey when he told them that the company improperly dipped into reserves -- with the defendants' knowledge or at their direction -- or it does not. Either jurors believe former Enron officer Kenneth Rice when he told them that Skilling directed him to mislead investors or they do not. Ruemmler will give jurors reason after reason why these witnesses had no motivation to lie under oath but, ultimately, those words can't and won't trump the sense and sensibilities that the jurors themselves got from those witnesses when they testified.

Likewise, and for better or worse, jurors by now have formed their opinions of the two defendants and there is very little that prosecutors will be able to do to sway those views. Either jurors believe that Lay was above the fraudulent fray at Enron or they do not. Either they believe he is genuinely angry now at being deceived by his underlings at the company or they do not. And either they believe Skilling's story-- that he never suspected fraud at Enron because he never believed the company needed fraud to thrive-- or they do not. No prosecutor, not even the best prosecutor in the world, is going to be able to overshadow, much less manipulate, the images and perceptions jurors have of Lay and Skilling on the witness stand.

That doesn't mean that the feds won't try. They will attack the defense teams' version of events. They will tell jurors that it is preposterous to believe that Lay and Skilling were the only two honest men at Enron. But they had better tell jurors about it quickly, and succinctly, and without a lot of repetition or fancy legal talk. Because jurors who were selected in a few hours, and then forced to linger at trial for nearly four months, are going to be in no mood to waste time. They see the finish line. And they want to get there as quickly as they can.

Andrew Cohen writes Bench Conference for washingtonpost.com and is  CBS News' chief legal analyst. His online work for the network can be found at CBSNews.com.