High court hears Enron executive’s appeal

From the Winter 2010 issue of The News Media & The Law, page 10.

A high watermark for pervasive courthouse publicity was surely set during the 1954 murder trial of Dr. Sam Sheppard, when a panel of sequestered jurors gathered during a lunch break to pose for news photos just days before convicting Sheppard of killing his wife.

The reporters convened in Cleveland covered the case so pervasively — they sat inside the bar during jury selection and set up a radio booth next to the deliberations room — that the defendants called it a “Roman holiday” for the news media. Sheppard’s ordeal became iconic in American culture, inspiring the television show and movie “The Fugitive.” But his case also illustrates a judge’s obligation to balance the public’s right to access criminal trials with the negative effects an intrusion might have in high-profile proceedings.

When the U.S. Supreme Court overturned Sheppard’s verdict in 1966, it was one of the few times it has dealt directly with the effects of publicity on a criminal proceeding. This spring, the Court is poised to take up the issue again when it decides whether former Enron CEO Jeffrey Skilling received a fair trial in Houston, where residents closely followed the energy giant’s meteoric ascent and subsequent demise.

Skilling was convicted in 2006 of securities fraud in connection with the company’s 2001 collapse. He and his attorneys argue that Houston was “rife with the anger and pain engendered by Enron’s collapse” and that the trial, closely followed by residents and reporters alike, should have been moved. They asked the court during oral arguments March 1 to find that in cases of high community interest, a defendant may try to establish a presumption that no unbiased juror could be found locally — a presumption the state could not refute.

New York attorney David Schulz filed a friend-of-the-court brief in February on behalf of a coalition of 17 media organizations, including the Reporters Committee for Freedom of the Press, urging the Court to bear in mind that establishing such an irrefutable presumption could erode public court access.

“The press is weighing in to just be sure that there’s no loose language” in the Court’s decision that might “inadvertently undermine the current standards,” Schulz said in a recent interview.

The brief takes no position on what should happen to Skilling, but emphasizes that what made Skilling’s case unusual was not so much the publicity it received, but the widespread economic impact of Enron’s collapse among Houston residents and the ensuing anger. Skilling’s defense team made the same point with emphasis in his brief to the Court, saying “the Government itself described the entire community of Houston as a ‘victim’ of Skilling’s alleged crimes.”

According to Skilling, the theme clearly played out during voir dire, the process of questioning potential jurors: nearly nine out of 10 potential jurors who filled out questionnaires said they had heard of Enron’s collapse; nearly half said they had some connection to it, such as a friend or relative employed by the company.

Skilling’s brief describes constant and sometimes withering press coverage. “One column in the Houston Chronicle, entitled ‘Your Tar and Feathers Ready? Mine Are,’ demanded a ‘witch hunt,’” the brief says. “Between 2001 and 2004, when Skilling was indicted, the Houston Chronicle ran nearly 100 stories just about victims of Enron’s collapse” and the news coverage reflected “[t]he devastating impact of Enron’s collapse on Houston.”

The U.S. Court of Appeals (5th Cir.) affirmed the trial court’s refusal to move Skilling’s trial. Yes, the appeals panel wrote in its opinion, Skilling was entitled to a presumption of prejudice, and the combination of publicity and deep community anger — along with a prior guilty plea by a co-defendant — were sufficient. But the panel still found that a thorough jury-selection process “more than mitigated” the concern: “The government met its burden of showing that the actual jury that convicted Skilling was impartial.”

That’s precisely the process the media group hopes the Supreme Court will find adequate. To determine whether a presumption of prejudice is warranted in the first place, the media brief says, courts should look for more than pervasive publicity — a malleable and routinely abused concept for which actual impact on the trial process is unclear. There should also be clear reasons to believe entrenched bias exists in the community, akin to what was seen in the Skilling case. Setting a weaker standard would give trial judges a strong incentive to seal off aspects of the case rather than risk a transfer.

And even when the presumption of prejudice is warranted, the media group argues, courts should turn to other ways of protecting defendants’ fair trial rights that stop short of moving the proceedings to another district. Past approaches have included the rigorous questioning of potential jurors; culling them from a large pool of residents; sequestration and frequent reminders to them of the duty not to follow press coverage of the case.

“Experience has shown, time and again, the exaggerated nature of claims bemoaning the inability to seat a jury unaffected by press coverage, even in the highest profile cases,” the media brief says. An irrefutable presumption of prejudice would “perversely encourag[e] more activity to be conducted outside the public view in the very criminal prosecutions of greatest concern to the public.”

For his part, Skilling argues that whenever bias is pervasive enough to justify a presumption of prejudice, it will be so entrenched that no jury selection process could suffice to guard against it. And even if in theory an impartial jury could be picked in that situation, he says it didn’t happen in Houston. The government counters that a presumption of prejudice is only rarely warranted and that Skilling’s arguments are “at odds with the basic premise of the jury system that trial judges are equal to the task of empaneling impartial jurors.”

Amid all this debate, there’s one juicy issue that might not even come up before the Court: In the digital age, when all local news is potentially national with the click of a mouse, how useful is it to move a case a couple hundred miles away? If the goal really is finding 12 impartial people to decide the fate of a notorious suspect, whose mug shot ran on Google news, can a court do so much better in a distant exurb than in the metropolis where the case began?

It’s a key question, Schulz said. Whether a case moves forward here or there, impartiality will always hinge on voir dire.