March 02, 2010
Skilling v. U.S., Part II: Change of Venue/Pre-Trial Publicity/Voir Dire
Posted by Christine Hurt

The unexpectedly interesting discussions from yesterday's arguments center around the voir dire process in the Lay/Skilling trial.  (Transcript here.)  Skilling's legal team argues that (1) the trial should have been transferred out of Houston because of community and outrage and pre-trial publicity; (2) that voir dire would not have been a valid method to ensure a fair and impartial jury in this situation; and (3) even if voir dire possibly could have ensured a fair and impartial jury, the truncated (five hour) voir dire mandated by Judge Sim Lake in this case did not.  Although most analysis of the argument yesterday articulates the take-away as being that the judges seemed very concerned with the jury selection process but was also very concerned with micromanaging the jury selection process, the time spent on asking questions about the selection process seem to weight the first part of that take-away as more serious than the first. 

For example, in a single question that runs 31 lines long, Justice Breyer reads from the transcript and gives examples of biased jurors, but also says in the middle "At the same time, I am worried about controlling too much a trial judge.  I have expressed those concerns" before returning to the line of questioning.  Immediately prior to saying that, Breyer points to six jurors that he thinks might have been erroneously denied being struck for cause, requiring the defense to use its last five peremptory challenges against them.  "So I am concerned about the 5 hours, about the lack of recusal for cause, about the very, very brief questions that he provided to people who had said on the questionnaire they could be -- they could be biased.  They said we think he's guilty, for example.  And all those are cause for concern."

Fun stuff.

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