Gordon: I don't for a minute suggest Alabamans (or anyone else) aren't up to the task. By "stupid" I was referring to the DOJ because venue selection is so important.

And by "Gordon," I meant "Christine." :-)

(But the "stupid" was clearly DOJ-directed. I might say that I, too, grew up in the South, but in reality I was born and raised in DC -- the town of Northern charm and Southern efficiency.)

The UK's Attorney General recently announced that the Government was going to bring forward proposals to implement a provision in the Criminal Justice Act 2003 which would allow for doing away with juries in serious fraud trials. This has been an issue which has been discussed in the UK for years. People sometimes talk about the question of whether jurors understand the issues, but there's also a question about the problem with very long trials. Of course the constitutional context is very different in the UK.

The Southern District does in fact include places north of midtown, places like Westchester County, home to more than its fair share of "numbers people".

Sorry to sound like an obnoxious New Yorker here, but as I noted on my blog yesterday, the only plausible explanation here is that the people on the Scrushy jury just weren't able to see through the PR spin that was spoon-fed to them. I'm pretty confident that if the case were tried in New York, they'd be cleaning out a cell for Scrushy in Rikers, perhaps even next to Kozlowski.

I attended the ABA IP Section's Summer Conference where the judges reported that juries don't have any problem with complicated patent cases. San Jose federal juries are famously sophisticated on technology, but Judge Illston said her San Francisco juries had no problem either.

Michelle:

The "only plausible explanation"? Isn't hometown sympathy plausible? Isn't it universally conceded that hometown venues matter?

Michelle, Kozlowski was convicted by a NY state court in Manhattan. If Scrushy had been tried in NY, he would have been in a federal court, probably the Southern District of New York, which does pull from Westchester, but also from these other counties: New York, Bronx, Rockland, Putnam, Orange, Dutchess and Sullivan. If convicted in the SDNY, I don't think he would have gone to Rikers, which is a state prison.

I think one plausible explanation is that jurors hate it when all the witnesses against the defendant have flipped. As my crim law prof Michael Tigar used to tell us, "A snitch in time saves mine."

John -- I've never prosecuted, but as a white collar defense lawyer, I would have been overjoyed to see the government select Birmingham over SDNY or any other jurisdiction in which there was venue. Hometown advantage matters, period. I did find some of Scrushy's hometown strategy a bit hard to swallow, though. Your assessment seems spot-on to me.

It might make sense to try a case on the defendant's home turf if the local sentiment flows the other way, though -- I don't think the Enron Task Force's approach is necessarily a bad idea, because Houston was hit so hard by Enron's collapse, and because the Enron debacle made Houston a national laughingstock. The thin line between love and hate doesn't seem to have been crossed in Birmingham, but it might have been in Ken Lay's case. Anyone have any sense of how the HealthSouth debacle affected Birmingham? Ken Lay's real lesson here might be that the hometown can keep on loving a fallen hero if he puts enough distance between him and the "real bad guys."

Michelle -- it's more than a little, umm, condescending to suggest that, in the words of any Southern football coach, "your'un is better than our'un" and that because of the inherently superior aggregate financial acumen of Southern District of New York residents, they would have convicted the obviously guilty Scrushy in a, well, in a New York minute.

There is little doubt that trying Scrushy in Alabama was a big-time mistake by the feds (for "hometown" and other reasons), but it wasn't because those addle-brained Southerners couldn't handle all those really tricky numbers once they ran out of fingers and toes. Similarly, I doubt Scrushy would have come out of a Manhattan courthouse similarly unscathed, but it's not because half of the jury pool there wears an "I [Heart] Double-Entry Accounting" shirt to work on casual Fridays.

In my one big trial "back East," I saw a federal jury selected within a 90-minute drive of The City with a mean educational level of about one year of college. There were no financial professionals (or former financial professionals) on the panel, nor was there a single juror with any expertise or interest in the admittedly esoteric subject matter -- metallocene catalysis of olefin feedstocks and nuclear magnetic resonance imaging of the resultant polymers. But those folks "got it" after a three-week trial, and they got it because we were in a neutral venue and did a better job of educating and persuading than did our opponents. That's what the government failed to do in Scrushy's case, and though the deck was probably stacked against them more than it would have been in NY, it's not because the folks down South are fye-nanshully un-sofisseecated.

Christine: as a wise professor once observed, "Texas is not 'the South'." Shame on you for so simplifying and conflating two spearate, rich cultures.

I didn't think someone from Long Island would grasp the nuance, so I chose to ignore it. Long Island isn't Westchester, after all.