Justices consider whether Enron exec got fair trial

The Supreme Court seemed sympathetic on Monday to the argument that former Enron CEO Jeffrey Skilling did not receive a fair trial in Houston following the energy company’s bankruptcy and subsequent collapse.

Skilling’s attorneys had asked the court to consider both whether a federal fraud statute used to convict the executive was unconstitutionally vague and whether it was possible to seat an impartial jury in Enron’s hometown given the widespread economic damage the bankruptcy caused the community, which was the focus of the bulk of the justices’ questions.

The issue of whether pretrial publicity by the news media contributed to the bias, which was of concern to the media groups that filed a friend-of-the-court brief with the court, was not discussed and in fact downplayed by Skilling’s team.

Skilling’s attorney, Sri Srinivasan of O’Melveny & Myers, opened his argument by saying that "pervasive animosity" tainted the jury selection process, known as voir dire. Srinivasan noted that Enron’s ties to the community ran so deep that all 150 lawyers in the U.S. Attorney’s Office had recused themselves from the investigation that led to Skilling’s prosecution and 60 percent of potential jurors said they would not be able to set aside their biases in questionnaires.

"This was one of the very rare cases in which, because of the degree of passion and prejudice in the community, the process of voir dire cannot be relied upon to adequately ferret out and identify unduly biased jurors," Srinivasan argued.

Justice Sonia Sotomayor broke in almost immediately to ask why the jury selection process in this case failed. Srinivasan pointed out that it took approximately five hours, whereas jury selection in other high-profile cases has been known to take days. According to Srinivasan, the trial court treated Skilling’s case like it was an "ordinary" matter, instead of a high-profile, highly publicized case.

Srinivasan also added that when a potential juror expresses any biases in a case like this, simply assuring the judge that he or she will be able to set aside anything heard or seen outside of the courtroom and decide the case based purely on evidence presented in court is not enough to allow that person to sit on the jury.

Justice Stephen Breyer said he was "really worried" about getting "into the business of running the trial court’s trials" and asked Srinivasan how to best instruct judges to handle high-profile cases.

"How would we sketch the lines?" Breyer asked "When does … the judge have to do more than is ordinary, and what counts as more than ordinary?"

The government’s position was argued by the Justice Department’s Deputy Solicitor General Michael R. Dreeben, who said the 14-page, 70-question form filled out by all potential jurors was effective in ferreting out biases and was in and of itself extensive voir dire. "A normal trial would not have had a 14-page questionnaire," Dreeben told the court. 

Breyer questioned Dreeben about the questionnaires of specific jurors, including one who personally lost more than $50,000 but was not dismissed by the judge.

"How can we be satisfied that there was a fair and impartial jury picked when the judge doesn’t follow up on a witness who says: I’m a victim of this fraud?" Sotomayor asked, continuing Breyer’s questioning.

Dreeben said the trial judge’s "very extensive questionnaires" allowed the court to seat an impartial jury and described other jurors who he said discredited the "immense distortion" that it was impossible to find unbiased jurors among a pool of 4.5 million people.

Other Enron trials that also took place in Houston resulted in several acquittals, Dreeben added, noting that Skilling himself was acquitted on some charges. These acquittals indicate that jurors could remain fair and unbiased despite exposure to press coverage, thereby eliminating the need to move the trial elsewhere, Dreeben argued.

Skilling v. United States is the first change-of-venue case the Supreme Court has reviewed since the 1960s and its decision has the potential to affect change-of-venue arguments in other high-profile cases.

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief that was filed on behalf of 17 media organizations in February. That brief urged the court to consider whether establishing a presumption of local juror bias could erode access to the courts and argued that pretrial publicity does not usually lead to bias and can be dealt with through the voir dire process.