June 24, 2010
Skilling v. United States: Change of Venue and Pre-Trial Publicity
Posted by Christine Hurt

First, the easy issue.  Was there a presumption of juror prejudice in Houston at the time of Jeffrey Skilling's trial, and if so, was that prejudice eliminate by an effective voir dire?  The Court seems to say "no" and in any event, "yes."

This is obviously not my area, but I can only surmise that the Supreme Court is saying that this issue is extremely hard to win.

Our decisions have rightly set a high bar for allegations of juror prejudice due to pretrial publicity. . . .News coverage of civil and criminal trials of public interest conveys to society at large how our justice system operates. And it is a premise of that system that jurors will set aside their preconceptions when they enter the ocurtroom and decide cases based on the evidence presented. Trial judges generally take care so as to instruct jurors, and the District Court did just that in this case.

Justice Sotomayor, dissenting, argues that the pre-trial sentiment in Houston against Enron, and Skilling, in particular, was as virulent as the types the Court has held warranted transfer: Rideau v. Louisiana (1963); Sheppard v. Maxwell (1966) and Estes v. Texas (1965). The majority disagrees.

I think there are at least two ways to interpret what is going on here.  One is that doctrinally, a jury pool is not prejudiced merely by massive, negative media reporting.  However, a jury pool may be prejudiced if that reporting is somehow improper, over-agressive or disruptive.  For example, if the reporting turns the actual trial into a "kangaroo court."  (But how would one know this at the time of the motion for change of venue?)  Or, if what is reported would not be allowed in court because it is constitutionally inadmissible or overly prejudicial.  (Inadmissibel forced confession televised repeatedly.)  But legitimate news coverage, particularly in a large city, particularly in the 21st century and not in a 1960s small town, will not poison the jury pool.  The Internet ensures a large marketplace of ideas, and the very existence of the internet, cable, satellite television, etc. makes it harder to assume that a transfer to a different part of the state will cure any pre-trial publicity problems.  (Earlier blog post on these points here.)

I also can see this another way.  The other cases that stand for the proposition that venue must be transferred under certain pre-trial publicity conditions are murder cases.  (One robbery case is mentioned, but only to distinguish it from the improper denial cases, which were murder cases).  Because murder inflames passions, particularly violent or gruesome murders.  This wasn't murder, it was financial fraud.   The Court just doesn't seem to think that media coverage of financial ruin is so inflammatory it can't be cured on voir dire.  And even if Juror 20 acknowledges losing tens of thousands of dollars from her 401(k) due to the collapse of Enron, she can't be so upset about it that we would discredit her later statements on voir dire that she did not "personally blame" Skilling.

However, I have been writing for awhile now on the emergence of financial fraud as the new home invasion.  In our safe world of gated communities and security systems, we aren't worried about In Cold Blood scenarios as much as we are someone raiding our financial nest egg and leaving us penniless.  (See Of Breaches of the Peace, Home Invasions and Securities Fraud).  In researching a soon-to-be-published piece on the Madoff victims, I can tell you that I would have been interested to see the venue fight there.  Was Madoff as reviled in Manhattan as Skilling was in Houston?  Or more?

It may be that in today's Internet age of information, transfers of venue will be rare.  We are bombarded with so much information, we can assume jurors aren't poisoned by one type of coverage and we can also doubt that a transfer would cure such a poison.  But, if transfers of venues are still alive and well, we should recognize that the public can pre-hate Skillings, Madoffs, and Ebbers as much as Bundys, Dahmers, and McVeighs.

Final note:  This case was argued for the United States by Michael R. Drebeen, although earlier accounts assumed that Elena Kagan would argue the case.

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