From the Summer 2010 issue of The News Media & The Law, page 25.
The U.S. Supreme Court decided on June 24 that former Enron CEO Jeffrey Skilling received a fair trial in the energy company’s hometown of Houston, Texas.
Skilling had asked the court to decide whether his trial, which ended with his conviction on 19 counts of conspiracy and fraud, should have been transferred, arguing that the impact of Enron’s collapse on the community and pervasive media coverage resulted in a jury that was biased against him. It was also one of a trio of cases the court considered this term that asked the justices to consider the “honest services” clause of the wiretap statute, which criminalized providing dishonest services.
Though multiple justices wrote opinions in Skilling v. United States — the first change-of-venue case the court has heard since the 1960s — most agreed that Skilling had, in fact, received a fair trial before an impartial jury. Despite the court’s decision on the fair-trial question, Skilling’s case was still sent back to the lower court for further proceedings because the court believed that his conviction under the honest-services statute was unconstitutionally vague.
“Prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance,” Justice Ruth Bader Ginsburg wrote in the court’s primary opinion of the fair-trial question. “In sum, Skilling failed to establish that a presumption of prejudice arose or that actual bias infected the jury that tried him.”
The court divided Skilling’s fair-trial claim into two questions: first, whether the lower court should have granted a change of venue based on a presumption of juror prejudice, and second, whether Skilling’s jury was, in fact, actually prejudiced.
Because Skilling had originally argued that the news media’s pretrial publicity partially created a presumption of prejudice, media organizations were concerned that the justices would decide that the news media contributed to the allegedly biased jury — a decision that could have resulted in judicial restraints on the media in other high-profile cases.
However, during the oral arguments in March, Skilling’s attorney, Sri Srinivasan of O’Melveny & Myers, told the justices that Skilling’s team believed the “pretrial publicity was a symptom rather than the cause” of the prejudice in the community, and focused instead on the effect on the community of Enron’s collapse.
The court was quick to point out that past cases showed that pretrial publicity, even if it is pervasive and adverse, does not inevitably lead to an unfair trial. Furthermore, the court said that Skilling’s case shared little in common with the few cases where a transfer of venue had been granted, which tended to involve murder trials, small towns, published confessions of guilt, or media coverage that resulted in a “carnival atmosphere” at trial.
“[N]ews stories about Enron did not present the kind of vivid, unforgettable information we have recognized as particularly likely to produce prejudice, and Houston’s size and diversity diluted the media’s impact,” the court wrote.
Seventeen media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief with the court. David Schulz, a partner at Levine Sullivan Koch & Shulz who wrote the brief, agreed that the size of Houston’s potential juror pool was an important factor in this decision and an important consideration in future cases.
“In most high-profile cases in most jurisdictions where you have large jury pools, the need for restrictions on access and gag orders is limited,” he said.
The court also noted that more than four years had passed between Enron’s collapse and Skilling’s trial, during which “the decibel level of media attention diminished somewhat.” Most notable though, was that fact that Skilling was actually acquitted of nine insider trading counts.
“It would be odd for an appellate court to presume prejudice in a case in which jurors’ actions run counter to that presumption,” the court reasoned.
Having ruled that there was no presumption of prejudice, the court then decided that Skilling’s specific jury was not tainted by actual prejudice because the jury selection process, also known as voir dire, was successful.
“Inspection of the questionnaires and voir dire of the individuals who actually served as jurors satisfies us that, notwithstanding the flaws Skilling lists, the selection process successfully secured jurors who were largely untouched by Enron’s collapse,” Justice Ginsburg wrote.
Skilling’s attorneys had argued that voir dire was insufficient because it had lasted for only five hours, whereas in other high-profile cases it had taken days. The government responded that the 14-page, 77-question form filled out by all potential jurors was effective in weeding out any biases.
“A normal trial would not have had a 14-page questionnaire,” Deputy Solicitor General Michael R. Dreeben of the Justice Department told the court during oral arguments last March.
The court pointed out that all of Skilling’s jurors had already stated on their questionnaires that they would be able to base a verdict on only the evidence presented at trial. Furthermore, the trial judge had also questioned each juror individually to further ferret out any bias.
For the news media, the critical aspect of the case is what the justices didn’t say — namely, that a presumption of prejudice arising out of press coverage is irrebuttable. Instead of focusing solely on pretrial publicity, the court also examined the potential for juror bias resulting from Enron’s substantial adverse impact on the community.
“If they [the court] had accepted Skilling’s argument that there could be an irrebuttable presumption of prejudice created merely by intense publicity, then there would have been enormous new pressures on judges to restrict publicity in high-profile cases to avoid the need for change of venue,” Schulz said. “The Supreme Court reaffirmed that there are many other tools available to protect the fair trial rights of the defendant other than limiting the public’s right to access and report on events going on in a prosecution.”
Schulz also pointed out that press coverage has much less of an impact on jurors than is sometimes believed.
“Even in highly publicized cases, courts have not had difficulty in finding jurors that did not see the potentially prejudicial news reports,” he said.
Justice Sonia Sotomayor, joined by Justices John Paul Stevens and Stephen Breyer, wrote in a dissenting opinion that Skilling did not receive a fair trial before an impartial jury.
“The District Court’s inquiry lacked the necessary thoroughness and left serious doubts about whether the jury empanelled to decide Skilling’s case was capable of rendering an impartial decision based solely on the evidence presented in the courtroom,” she stated.
Sotomayor added that “important lines of inquiry were not pursued at all,” such as questions about the guilty plea of one of Skilling’s co-defendants or whether potential jurors would have difficulty avoiding discussion of the case with family, friends, and colleagues while the trial was ongoing.
However, she agreed with Ginsburg’s opinion that “the prospect of seating an unbiased jury in Houston was not so remote as to compel the conclusion that the District Court acted unconstitutionally in denying Skilling’s motion to change venue.”
Sotomayor reasoned that the size and diversity of Houston, the lack of a confession or “smoking-gun evidence” in the media reports, and the fact that the media coverage did not compromise the “calmness and solemnity of the proceedings” were critical factors in drawing her conclusion.