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How bad did things look for Jeffrey Skilling and Kenneth Lay as they went to trial in January? If the numbers were any indication, pretty dismal. Three out of four mock juries hired to listen to their defense team present the case concluded that the pair were guilty. And seven of the eight juries who looked just at Lay’s case voted to convict him as well. The defense was holding on to one glimmer of hope. Their jury consultants had found that a few people might-emphasis on might-be willing to consider the possibility that other executives were to blame for the Enron debacle and that no human being could possibly monitor every aspect of a multibillion-dollar company’s affairs. Still, the defense team could almost hear the jailhouse door slamming in the distance. Prosecutors had appeared to be on the verge of a slam dunk. But things weren’t going so well for them, either. The Enron case had given prosecutors an embarrassment of riches, but they were struggling with a story that only an accountant could love. Was a working-class Houston juror going to relate to a tale of mark-to-market write-downs and revenue recognition? No one was going to confuse this case with a Grisham thriller, and the prosecution team plotted with their jury consultants to keep from losing a sure thing. By now, everyone knows that Lay and Skilling were convicted on May 25 of multiple counts of conspiracy and securities fraud, that Lay died, and that Skilling is planning to fight on with an appeal. But in the months leading up to the trial, the outcome appeared much less certain to both sides. Their focus was on getting the best jury they could and on crafting a convincing and compelling story. They brought on three veteran jury consultants to help them battle for an advantage: Jo-Ellan Dimitrius, for the prosecution; Robert Hirschhorn, who worked for Lay; and Reiko Hasuike, who advised Skilling. Over the course of five months, The American Lawyer talked with the three consultants, who shared the strategies they employed in the Enron case. The consultants concur on one thing in particular: that early victories by the prosecution on jury issues were pivotal in getting a conviction. “The venue and the jury selection were the only things that could have made the difference [for the defense],” Hasuike says. Dimitrius was key in helping the prosecution score wins on both points-getting Judge Simeon Lake III to keep the trial in Houston and making it easy for him to limit voir dire. Meanwhile, everything that could go wrong for the defense team did. It was stuck with a jury from Enron’s hometown and given almost no time to question prospective jurors. There were problems behind the scenes, as well: Hirschhorn wasn’t able to coach Lay prior to his testimony-and the Enron chairman turned in a disastrous performance. Hirschhorn also clashed with Skilling’s lead lawyer, Daniel Petrocelli, about whom to pick for the jury. Focus groups conducted by Hasuike showed that the defense’s story-that no fraud had actually occurred-would be a hard sell. And during the trial, Lay’s lead lawyer, Michael Ramsey, a prominent Houston criminal defense attorney, was hospitalized with heart problems. Perhaps it would have taken a miracle for the defense team to pull out a victory for Lay and Skilling. After all, the pair’s Enron-related sins had been explored everywhere from documentaries to The Daily Show. But the art of jury consulting is, to some extent, about achieving what seems impossible. Dimitrius and Hirschhorn knew that going in: She had helped O.J. Simpson win acquittal as a member of his “dream team,” and Hirschhorn had played a major role in helping millionaire Robert Durst beat charges that he had murdered a neighbor. Such unexpected results are the reason that top consultants can command fees of up to $200,000 for a single case. But in Enron, the prosecution, with Dimitrius’s help, engineered a strategy that ensured that there would be no divine intervention for the defense. As Petrocelli acknowledges, the defense “had very little room to maneuver.” Dimitrius, a 22-year veteran of the jury consulting business, and the prosecution began boxing in the defense on day one. She had been brought aboard in August 2004. The defense was just about to file a motion to move the trial out of Houston, an obvious move given the intensity of feeling in the city about Enron’s collapse. Dimitrius dug in. For two months she and her staff surveyed 400 Houston residents by phone, asking them basic questions about whether they had followed the case, how they felt about Lay and Skilling, and whether they thought the pair was innocent or guilty. To compare attitudes, they also surveyed 400 Phoenix residents. The team also pored over hundreds of magazine and newspaper articles published in Houston in an effort to counter the defense’s argument that the news accounts about Enron had poisoned the jury pool. The results were exactly what she was hoping for. Attitudes among the residents of both cities were similar: 63 percent of Houston respondents and 68 percent of those in Phoenix said they felt Lay and Skilling were either “definitely guilty” or “probably guilty.” And of 297 news articles, they found several that painted the defendants in a positive light, and some that even accused the Houston Chronicle, which had aggressively covered the case, of being too soft on Lay. The prosecution filed a motion detailing Dimitrius’s findings, and on January 19, 2005, Judge Lake denied the defense request to move the trial. “The court,” Lake wrote, “is not persuaded that there exists a reasonable likelihood that the court will be unable to empanel an impartial jury despite widespread knowledge of the case.” He concluded that while many people in Houston had negative feelings, the jury pool in a city of 2 million was so large, and the questions in the jury questionnaire developed by both sides were so thorough, that he could identify and remove any jurors with bias. Clearly, “it was a huge victory for the prosecution,” Dimitrius says. During the next ten months, Dimitrius conducted a more detailed community attitude survey of Houston residents-asking about their hobbies, religious beliefs, and views on Enron, among other things-to come up with a profile of the type of jurors that would be best for the prosecution. She also put together individual profiles of the people who had filled out juror questionnaires. The 52-year-old Dimitrius was also trying to help prosecutors come up with a story that would resonate with jurors. But, because of the accounting jargon, she was having a hard time getting a clear picture of what Lay and Skilling had done wrong. At Dimitrius’s urging, the prosecution hired a Los Angeles graphic artist, Juliet Huck, to create visual tools to help them articulate a more compelling story. In October 2005 Dimitrius and Huck met with a pair of lawyers from the U.S. Department of Justice’s Enron Task Force, John Hueston and Robb Adkins. The men had flown to L.A. to work on a presentation to the jury that employed what Huck calls “visually persuasive storytelling.” The two women displayed a wall of illustrations-some artist’s pencil sketches, some computer-generated graphics-with simple and bold statements: For instance, a Power Point slide with Ken Lay’s photo under the headline “Lay Lies About Bad News.” Huck walked through each graphic, and as she spoke, a clear storyline developed about where Lay and Skilling had committed crimes: how they hid losses from Enron’s failing business units, shifted money from reserve accounts, sold Enron stock as the company headed toward bankruptcy, and lied to employees and stockholders. Some of the graphics were fine-tuned and used throughout the trial. Prosecutors were trying to translate the story into words that a jury would grasp. “The case had to be reduced to what the defendants themselves actively did in a manner that would strike the average juror as criminally wrong,” Hueston says. Dimitrius and Huck listened for sound bites that would grab jurors, and Hueston and Adkins jumped up several times to jot ideas on a board. Dimitrius was very familiar with the power of a few well-chosen words. She takes some of the credit for perhaps the most famous phrase to emerge from the O.J. trial: “If it doesn’t fit, you must acquit.” In this case, “when John said, ‘This is what Lay did versus what he said,’ that was my aha moment,” Dimitrius says. “I knew that was going to be the hook people could understand.” Around the same time, Hirschhorn was sitting in his suburban Dallas office shuffling through 8-by-5 index cards he’d put together describing each of the 400 people who’d filled out a juror questionnaire. His system was simple: For those who would be acceptable jurors, he wrote an “okay” on the cards; for those he thought should be excluded, he wrote “strike”; if he needed more information, he’d jot a question mark, but would indicate whether he was leaning toward an “okay” or a “strike.” He gave an “okay” to people who seemed to have a skeptical personality, because he felt they would question the government’s case. He also okayed those who did not indicate strong feelings about Enron’s media coverage or who had a strong business sense. Petrocelli and Hasuike were reviewing the same list, and e-mailed Hirschhorn their assessment. The results didn’t bode well for a smooth jury selection process between Lay’s camp and Skilling’s. Of the 90 people Hirschhorn thought were definitely okay or who might be okay for the jury, every one had been on Petrocelli’s list to strike. Hirschhorn soon got a call from Ramsey, Lay’s lawyer, asking him to come to Houston to meet with the defense teams. Over the next two months he made several trips to a war room that Skilling had set up across the street from the courthouse. Located on the top floor of the Bank of America building, the room was designed by Skilling to look like Enron’s headquarters with lots of open space and walls fitted with floor-to-ceiling whiteboards. The two defense teams had been forced together after Lake denied a motion to separate Lay’s case from Skilling’s. Skilling had put up $23 million for his legal fees and had a team of 14 lawyers from O’Melveny & Myers, six paralegals from O’Melveny’s L.A. office, and one local criminal defense attorney. (O’Melveny in a July court filing said Skilling owes an additional $30 million-plus.) Lay’s team had four lawyers, and he had given Ramsey a $2 million retainer. Over the next several months, Petrocelli and the O’Melveny lawyers would dominate, and their role would grow even larger after Ramsey was hospitalized during the trial. Hirschhorn, however, is used to calling the shots in jury selection, and was not shy about pushing his point of view. He advocated picking jurors who felt intense animosity toward Lay and Skilling. According to what he heard in focus groups, Hirschhorn believed that these jurors would, after hearing the evidence, decide that they had misjudged Skilling and Lay and would vote for acquittal to make up for their initial views. Petrocelli didn’t like the idea, Hirschhorn says, and the two got into a shouting match when he pitched it. Petrocelli denies that there was a heated exchange, but acknowledges that he was reluctant to keep people in the jury pool who had very negative feelings about Lay and Skilling. Eventually, Petrocelli says, “we largely acceded” to Hirschhorn’s point. But it took several meetings before the two teams agreed. As Chip Lewis, one of Lay’s defense lawyers, puts it: “We all ultimately agreed on the strategy, but it took some cussin’ and discussin’.” Hirschhorn says a tough case requires an unorthodox defense. That’s how he helped win the 2003 acquittal of Durst, who had been charged with killing his neighbor and then chopping up the body. Hirschhorn says he believes Durst would have been convicted if the case had been handled in a conventional way. His strategy on that case was to pick a jury that would make a distinction between the slaying, which the defense argued was in self-defense, and the dismemberment. In Lay’s case, Hirschhorn proposed that the lawyers try to get a hung jury by picking people with diametrically opposed political views on hot-button social issues, like abortion and gay rights. He felt it would be virtually impossible to get a jury in Houston to find the defendants not guilty on every charge, so the defense should pick jurors who couldn’t agree on anything. But Ramsey and Petrocelli immediately rejected the idea, since neither wanted to try the case a second time. Hirschhorn’s aggressive approach isn’t much of a surprise, given that he’s a former litigator himself. He got into the con- sulting business in the early 1980s, through his first wife, Cathy “Cat” Bennett, a pioneer in the field, who died of breast cancer in 1992. Jury consulting has clearly been good to Hirschhorn. On a June afternoon outside his Flower Mound, Texas, home, Hirschhorn is tooling through his gated neighborhood in a new golf cart. The homes in this development are built around a golf course designed with replicas of famous holes from around the country. The 50-year-old Hirschhorn wears a gold Rolex, drives a Mercedes, and can afford toys like the golf cart and a collection of sports memorabilia-baseballs signed by Mickey Mantle, Joe DiMaggio, and Willie Mays, and a golf ball signed by Tiger Woods. Hirschhorn says the Lay case was only an average payday-$52,000. That’s far below the $200,000 he scored in the Durst case. Lay’s tighter budget meant that Hirschhorn had to forgo the kind of all-out consulting effort he had devoted to Durst. In that case, he spent more than 70 hours preparing Durst to testify. One of his staff members spent a month sitting in the trial to help out. And he conducted several mock trials and a created a shadow jury for Durst. Hirschhorn wasn’t even available to prepare Lay for his testimony in April. By then, Hirschhorn was in Puerto Rico working on a death penalty case. Lay’s lawyers asked him to come back to the mainland to help prepare their client, but Hirschhorn says that he felt he couldn’t walk away from a capital case. Hirschhorn now regrets his decision. Ramsey, who had spent months preparing to question Lay, was hospitalized after Lay took the stand, and another member of the defense team, George “Mac” Secrest, Jr., stepped in. During six days of testimony, Lay was combative and at one point was even testy with Secrest. “Ken,” Hirschhorn says, “did not rise to the occasion.” Even if Lay had been at his most charming, he might have had trouble swaying the jury. The mock jurors had already told the defense that they were convinced that he was guilty during sessions held six and nine months before the trial. On both occasions, 20 Houston residents gathered in the morning to hear Lay’s lawyers present prosecution and defense arguments. They were divided into two groups of ten and asked to reach a verdict. Each panelist then filled out a jury verdict form and was interviewed by Hirschhorn. The process was repeated in the afternoon with a new group of 20 residents. According to what the morning group had to say, the defense altered its arguments to see if it would change the result. Of eight possible verdicts, seven were for conviction. “The biggest problem we were constantly fighting was their belief that the CEO of a corporation is the captain of the ship, and captains know everything,” Hirschhorn says. So the lawyers tried to change the metaphor. They described Lay as akin to the secretary of the Navy. How could he possibly know where all of the ships in the Enron fleet were sailing? The defense also found that jurors were not buying their argument that Enron’s chief financial officer, Andrew Fastow, was to blame for the company’s fraud. So they softened their attack on Fastow. The changes helped produce the only positive result: One group of mock jurors deadlocked on a verdict. The same story played out three months before the trial with Skilling’s defense team. They took a slightly different approach. Forty-eight Houston residents were brought together to hear Skilling’s lawyers present the case from both sides. They were then split into four groups of 12 to deliberate. Only one group voted to acquit, but that was enough for the defense team to decide that their arguments held water. Still, Hasuike, who ran the session, acknowledges that it was an uphill battle to convince the jurors there had been no fraud at Enron. “At a gut level,” she says, their reaction was ” ‘you’ve got to be kidding.’ “ By January 2006, the consultants had been working on the case for 18 months. They had compiled a painstaking analysis of the jurors’ beliefs, backgrounds, and specific feelings about Enron. The jury pool had been winnowed to about 300 Houston residents, and each of them had responded to a 12-page questionnaire. Hirschhorn, Hasuike, and Dimitrius had expected to spend weeks watching lawyers grill prospective jurors, looking for any indications of excessive bias. Then Judge Lake dropped a bomb. On December 16 he said that he was going to pick a jury in one day. Dimitrius’s prep work for the prosecution gave it an edge. As Lake had noted in his ruling on the venue, the survey data she compiled had convinced him that he could weed out biased jurors. And he believed juror responses on the detailed jury questionnaire, which had been crafted by the three consultants, provided enough information that a lengthy voir dire would be unnecessary. Anyone with even a passing knowledge of the case concluded that limiting voir dire was a major blow to the defense. Hasuike had been quietly working on profiles of the 300 people in the pool. When she heard about Lake’s decision, “I was shocked,” Hasuike says. “I kept asking Dan, ‘How can it be?’ ” She says that in her 20 years in the business, most jury selections in criminal and civil cases have lasted two to three weeks. Petrocelli, who spent more than 20 days picking a jury in the civil case against O.J. Simpson, was also flabbergasted. “ It was not a setting or process conducive to getting meaningful information in a few minutes,” he says. The defense had requested time to question each juror at length in a sequestered courtroom. Instead, Lake called about 50 jurors to the bench one by one. Petrocelli, Ramsey, and prosecutor Clifford Stricklin each had a few minutes to ask follow-up questions. Petrocelli and Ramsey asked to disqualify several of the jurors. Lake excused a couple of them. After voir dire, both sides were given 25 minutes to pick whom they would strike. The defense got 12 strikes, and the government got six. Each team huddled in separate jury rooms. Hirschhorn led the discussion for the defense, laying out his index cards on each juror. The defense lawyers wrote their choices of jurors to strike on a piece of paper and went back into the courtroom. Judge Lake took their list, as well as the prosecution’s, and culled names from the pool, with neither side knowing whom the other had voted to strike. Lake then called up the first 12 people remaining in the pool-eight women and four men who would make up the final jury. For Dimitrius and Hirschhorn, their role in the case was essentially over. But the 55-year-old Hasuike stayed on. Petrocelli had asked her to work with the defense team, advising them how to cross-examine witnesses and to stay on-theme. A slightly built woman with short, jet-black hair, she is reserved and soft-spoken. Unlike Dimitrius and Hirschhorn, who both make regular appearances on shows like Larry King Live and Good Morning America, Hasuike maintains a very low profile. She has never before granted an interview, and though pleasant and thoughtful during a discussion with a reporter, she declined to discuss any of her past cases or to sit for a photograph to accompany this story. It’s perhaps ironic then that of the three consultants, she was the one who was pushed into the spotlight during the trial. On the first day of Skilling’s cross-examination, lead prosecutor Sean Berkowitz pointed her out to the jury. “Do you know who this woman is?” he asked Skilling. Skilling replied that she helped him articulate what he wanted to say. Berkowitz pressed him, asking if Hasuike had given him advice on how to persuade the jury. He then flashed Hasuike’s resume on a large screen. It noted her expertise in jury selection, witness preparation, and “persuasive communication.” Hasuike describes the moment as “heartbreaking”: “I was worried that the jurors were going to get the impression that the way Jeff Skilling testified was because he was coached and had had a makeover.” Petrocelli had allowed Hasuike’s resume to be admitted into the record on the condition that he would be allowed to ask prosecutors about their jury consultant. Although Petrocelli carried a copy of Dimitrius’s 1998 book Reading People with him through the trial, he decided not to bring her up with the jury. Hasuike, meanwhile, sat on a bench next to the defense table monitoring the trial and passing notes to Petrocelli when she had questions about someone’s testimony. She also advised him on how to handle cross-examination of witnesses who’d made plea deals with the government, particularly Enron treasurer Ben Glisan, Jr., who was serving a five-year prison sentence. The defense claimed that the witnesses had been pressured by the prosecution to admit to crimes they didn’t commit, and Hasuike wanted the lawyers to draw out their personal stories to help prove the point. Hasuike would leave the courtroom and retreat each night to the defense’s war room. She stayed late into the evening, dispensing advice about how the lawyers and witnesses could be clearer. At one point she overheard Skilling giving a nearly incomprehensible explanation of Enron’s business. “I don’t understand a word you’ve just said,” Hasuike said to Skilling. The two met with Petrocelli to try to hammer out a more lucid explanation. Clearly, however, the coaching didn’t work. The jury came back with its guilty verdicts on May 25, after deliberating for 34 hours. Skilling was convicted on 19 counts of conspiracy, securities fraud, making false statements to auditors, and insider trading. Lay was convicted on six counts of conspiracy, wire fraud, and securities fraud. Hasuike’s focus groups had been on the money: The jury just didn’t believe that Lay and Skilling were innocent. And they embraced the simple message that the prosecution had hammered on throughout the trial, that the case was about “lies and choices”-that Lay and Skilling told the public one thing, but did another in private. Before and during the trial, Dimitrius gave the prosecutors feedback on the themes of their opening statement and closing argument. She advised Berkowitz to repeat the same words Hueston had emphasized in his opening to bring the case full circle. She and Huck, the graphic artist, also suggested that Berkowitz use an illustration that Huck had produced the night before as a prop: a large piece of cardboard, white on one side, with the word “truth” scrolled across it, and black on the opposite side, with the word “lies.” In the courtroom, he flipped the board from one side to the other. It was the last image the jurors saw as he handed the case to them. “You get to decide whether they told truths or whether they told lies,” he told the jury. “Black and white . . . you can’t buy justice. You have to earn it.” The message resonated with jurors. “I felt they did lie,” says juror Dana Fernandez, a Harris County court clerk. “I feel when you’re involved with other people’s lives and money, you have to be honest with them.” An hour before the verdict came down, Hirschhorn, in a phone conversation, voiced some hope for an acquittal. It was day six of the jury’s deliberations, and the delay seemed to him like a positive sign. “I’m proud of them. I think they can do it,” he said of the jury. But he acknowledged, “If those people come out and say ‘not guilty,’ this would be the most shocking verdict since O.J.” A few weeks later he recounted what he thinks went wrong in the trial. In addition to Lay’s testimony, Hirschhorn says, the defense was unable to make an effective case because witnesses refused to testify out of fear of being prosecuted. The lawyers argued that Enron collapsed as a result of a run on the bank by financial institutions after Fastow’s efforts to hide Enron’s losses came to light. “I don’t think we put on enough evidence to show it,” Hirschhorn says. Like Hasuike, Hirschhorn believes voir dire was a big problem, and, of course, having the trial in Houston was a major burden for the defense. “Factually, you can win this case. It was the venue,” he says. The case has taken several turns since the verdict. Lay’s lawyers believe his death in July voids the verdict against him, and Petrocelli is continuing to battle on Skilling’s behalf. In June he filed a motion asking the court to set aside the verdict or grant Skilling a new trial on the grounds that the evidence presented at trial was insufficient to convict him. Not surprisingly, Judge Lake denied the request. Petrocelli has also asked Lake to reconsider his ruling prohibiting the prosecution and defense from contacting the jurors to ask them what evidence and arguments they found persuasive. He will also be filing an appeal after Lake sentences Skilling in October. Petrocelli rattles off several grounds for a new trial, including the judge’s denial of a venue change and the limited voir dire. As for the jury consultants, the Enron case is old news. True to form, Petrocelli’s consultant, Hasuike, won’t discuss her next case. Hirschhorn says he has a couple high-profile cases in the hopper (though he says he can’t discuss them because he hasn’t yet made an appearance in court and doesn’t want to tip the other side to his involvement). As for Dimitrius, she’ll be putting her people-reading skills to the test again when she debuts as a commentator on the next season of ABC’s Dancing with the Stars. One of the show’s producers read Reading People and invited her to appear on the show to read body language and predict how the stars will do in the competition. Dimitrius is also taking on a second career of sorts. She and her husband, Randy, who is also a consultant at her firm, recently became part- owners of an L.A. helicopter charter business. She’s now training for a pilot’s license and can be seen landing a Bell JetRanger helicopter at LAX several days a week. It’s a challenge to control the aircraft, since the slightest movement of the gears can change a helicopter’s direction or turn it upside down. “You have to be 100 percent focused on what you’re doing,” she says. As the Enron trial showed, she can handle a little turbulence. Jo-Ellan Dimitrius Dimitrius & Associates, Pasadena, California Previous employment: Vinson & Dimitrius; FTI; Litigation Sciences Inc. Education: B.S., Scripps College;Ph.D., criminology, Claremont Graduate University Major cases: O.J. Simpson murder trial (for defense; won acquittal); Los Angeles police officers in Rodney King beating trial (for defense; won acquittal); “Night Stalker” Richard Ramirez trial (for defense; found guilty); Scott Peterson murder trial (for defense; found guilty); Kobe Bryant rape case (for prosecution; charges dropped) The ups and downs of the Enron case may have helped prepare Dimitrius for her new sideline as a helicopter Pilot. Robert Hirschhorn Cathy E. Bennett & Associates, Lewisville, Texas Previous employment: Associate, Goldstein, Goldstein and Hilley Education: B.A., Clark University; J.D., St. Mary’s University School of Law Major cases: Robert Durst murder trial (for defense; won acquittal); Terry Nichols in Oklahoma City bombing trial (for defense; won acquittal of murder charges); Vioxx wrongful death trial (for plaintiffs; jury issued $253 million verdict) HIrschhorn’s payday in the Enron case, $52,000, was far less than the $200,000 he has commanded before. Reiko Hasuike R&D Strategic Solutions, Llc, Houston Previous employment: Decision Quest, Inc.; Litigation Sciences Inc. Education: B.A., linguistics, International Christian University, Tokyo; M.A., linguistics, The Ohio State University; M.A. and Ph.D., psychology, Princeton University E-mail: [email protected].

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