Legal News

Skilling?s Big Day, Part II: Should He Have Been Tried in Houston?

By Ashby Jones

Good day, LBers. Since we last left you, a lot has happened: another devastating earthquake, Jerry Seinfeld returned to NBC, and the 2010 Winter Olympics wrapped up — congrats to the Canadians on their two huge weekend wins (here, here) — but we were bummed these guys weren’t invited to rock the world during the closing ceremonies (Alanis, shmelanis, we say).

In any event, despite the weekend’s events, we just can’t say away from the Skilling story. As we reminded you on Friday, lawyers for the former Enron chief executive will argue on Skilling’s behalf on Monday.

Until now, much of the attention on the Skilling appeal has focused on the “honest services fraud” prong. But both the WSJ and NYT over the weekend focused their stories on the other issue teed up in the case, whether Houston federal judge Sim Lake should have moved Skilling’s trial out of Houston in the first place.

As the WSJ’s John Emshwiller and Jess Bravin write:

Key among Mr. Skilling’s claims: Enron’s December 2001 collapse into bankruptcy was so traumatic for residents of Houston, Enron’s hometown, that he couldn’t get a fair trial there. Mr. Skilling argues that he should have received a change of venue, like Timothy McVeigh, whose trial in the bombing of the Alfred P. Murrah Federal Building was moved to Denver from Oklahoma City.

Click here for another story on the topic, from the NYT’s Adam Liptak.

In their Supreme Court filings, write Emshwiller and Bravin, Skilling’s lawyers cite instances where Skilling was the target of extremely negative media coverage and expressions of public anger in Houston. One Skilling filing said that questionnaires filled out by 283 prospective jurors found “80% expressed anger, negative views” concerning Skilling and his co-defendant, former Enron Chairman Kenneth Lay.

The New Orleans-based Fifth Circuit ruled that Judge Lake should have found a “presumption of prejudice” given the “pervasive community bias” against Skilling. But the court upheld Skilling’s conviction on the grounds that pretrial questioning had adequately screened jurors.

In its response, the government argues that news coverage of the case “was largely factual and objective.” It adds that the Constitution guarantees an impartial jury and “not a trial in a venue whose populace has no exposure to the effects of the defendant’s crime.”

Both stories ask, however, whether in the age of Twitter and iPhones, someone like Skilling could be guaranteed an impartial jury anywhere, even far from Houston. Writes Liptak:

Some legal experts said that little could be done to control the intensity of news coverage in highly publicized cases. "In national cases, pretrial publicity effects may not be remedied in any imaginable way," said Steven D. Penrod, a professor of psychology at John Jay College of Criminal Justice in New York, "because there are not venues in which there is no prejudice."

Full post as published by Law Blog - WSJ.com on March 01, 2010 (boomark / email).