March 01, 2010
Skilling's Day in Court: Question Presented #2, Change of Venue
Posted by Christine Hurt
So while we anxiously await news from SCOTUS today on the oral argument in U.S. v. Skilling, I was interested to see much media coverage about the "forgotten question presented" in the cert grant:  change of venue.  Corporate law profs everywhere are interested to see what happens with the "theft of honest services" charge, but I guess the media is interested in the venue issue.  In fact, all your favorite news outlets filed an amicus brief in favor of the government on this one -- see brief here.  Why?  Because if courts are worried about creating error by not transferring venue in light of media coverage, they will limit media coverage.  Here are the three arguments from the brief:

1. Declaring a pretrial presumption of prejudice to be irrebuttable would create a significant new incentive to restrict press coverage of the most intensely followed prosecutions and thwart the value of openness. Making the presumption irrebuttable would add pressure on trial courts to close pretrial proceedings, gag lawyers and restrict access to records in order to avoid the potential for a mandatory change of venue with its concomitant disruption, delay and expense. More secrecy, in turn, can only undermine the integrity of the judicial system and the public’s confidence that justice is being done.

2. Any standard for identifying when a presumption of prejudice to the jury pool exists must limit the presumption to the rare case where extraordinary factors beyond just the volume and tenor of pretrial press coverage raise specific and concrete concerns about the ability of jurors to reach a verdict based upon the evidence presented in court.  Criminal defendants regularly object to publicity about their prosecutions, and point to extensive media coverage as sufficient grounds for restricting public access to various aspects of the proceeding. In most cases, these concerns are overstated and properly rejected by trial courts under the existing standards governing the constitutional access right. A relaxed standard for determining when a presumption of prejudice exists would threaten to undermine the public access right. To avoid such a result, the Court should make plain that a presumption of prejudice must be based upon more than the existence of significant publicity, but rather requires additional prejudicial factors. Particularly in a large metropolitan area such as Houston, substantial publicity alone should never be sufficient to sustain a presumption of prejudice.

3. Any presumption of prejudice should be rebuttable given the effective remedial tools that are available to a trial court to address concerns that may arise in a high profile criminal prosecution. Voir dire, properly used, is an effective device for screening out potentially biased jurors and those who may have prejudged a defendant’s guilt or innocence. Other steps, such as calling a larger initial venire, allowing additional preemptory challenges, and strict instructions by the trial court can protect the fair trial right in most circumstances. An extensive record of fair and open trials conducted in the most intensely followed cases—resulting in both acquittals and convictions—confirms the ability of trial courts to ensure fair trials before unbiased juries.

In addition, according to this NYT article, Solicitor General Elena Kagan is going to argue that in this age of the Internet, an effective transfer of venue is illusory because media coverage is national, not regional.

However, after having lived in Houston during the "fall of Enron," I have to say that the hatred in Houston was not a general hatred felt by U.S. citizens after hearing of corporate misdeeds.  On the contrary, the intense emotional surrounding the trial, and the tenor of the news coverage, related to the fact that so many Houstonians lost their jobs, their retirement funds, and even their hometown-skewed investment funds due to the fall of Enron.  This also happened to take place during a recession, after HP bought Compaq, creating lost Houston jobs, and after 9-11, affecting Houston-based Continental Airlines.  I would argue that the bias in Houston was regional.  Folks in another part of hte state might have heard a lot about the Enron case, but they probably heard about it through a different news outlet than the Houston Chronicle, didn't read the anti-Enron op-eds that were part of the daily news diet, didn't hear the talk show call-in hours, etc.  I am very interested int he affect of the Internet on choosing jury pools and insulating jurors' decisionmaking, but I'm not sure this particular case has much to say about it.

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