The two former chief executives of Enron, the firm that defrauded investors, could be found guilty of consciously avoiding knowing about the illegal behavior that went on in the company, The Wall Street Journal reports.
The judge in the case, Simeon T. Lake III, plans to allow the so-called "ostrich instruction" to be read to jurors this Monday. It will require a lower burden of proof to be met to find Jeffrey K. Skilling and Kenneth L. Lay guilty of conspiracy and fraud by knowingly shutting their eyes to illegal activity at their firm.
However, some legal experts noted that since Skilling has not denied being unaware of some of the misdeeds at the company, he might be able to appeal a guilty charge.
"This is probably going to lead to a conviction for Skilling but give him a very credible appeal," said Joel M. Androphy, a criminal defense lawyer in Houston. "Allowing this is a stretch for Skilling."
Skilling's lawyer, Daniel Petrocelli, was both surprised and troubled by the judge's decision: "We have never asserted the ostrich defense. We have said all along this was not a case of hear no evil, see no evil. It was a case of there was no evil."
The ostrich defense refers to the bird's burying of its head in the sand.