There is no dispute that there was fraud. There is no dispute that the accounting was questionable. There is no dispute that shareholders lost billions or that the company went bankrupt.
But convicting any top executive, like Bernard J. Ebbers, the former WorldCom chief executive, is difficult. The arcana of accounting, compounded by the difficulty of finding convincing evidence of intent to commit a wrongful act – the proverbial smoking gun – is just one of the many hurdles prosecutors face in these cases.
The federal securities laws, with their complex requirements, only make the government’s task more difficult and create opportunities for smart, high-priced defense lawyers to create a reasonable doubt in jurors’ minds.
“It would be a rare case where it could be shown that a person wrote, or states, that as of a given time in the past, he committed an act with fraudulent intent,” Judge Barbara S. Jones of United States District Court in Manhattan told jurors last week, before they began their deliberations. She continued, “Such direct proof is not required.”
The struggle of the five men and seven women weighing the allegations against Mr. Ebbers is only the latest example of the morass facing jurors in white-collar cases. But the difficulty for both sides in explaining the relevant facts of the case show why, years after Enron, criminal trials of executives charged in the huge and undisputed frauds of 2001 and 2002 are just beginning – and there is no way to predict the outcome.
Of course, the jury hearing the case against Mr. Ebbers may decide to convict him, and they have deliberated for only a week now (they resume on Monday); juries have deliberated far longer. The government has also won well-publicized convictions in criminal actions against Martha Stewart and the former investment banker Frank P. Quattrone. But lack of dispute over the big, bad facts of the fraud does not mean that Mr. Ebbers or other white-collar defendants are or should be found guilty.
Jurors hearing Mr. Ebbers’s case have asked for dozens of documents and recordings entered into evidence during the trial, everything from entire budget reports to e-mail messages with single sentences to whole transcripts of testimony. Some requests have been specific, like asking for the revenue statements for a specific month. The intent of others has been more vague, like a request for the testimony in which David Myers, WorldCom’s former controller, said Mr. Ebbers apologized to him.
The range of requests spread over many days may signal that the jurors are unsure of what to focus on, lawyers said, although guessing what is going on in a jury room is an exceedingly difficult task.