Court may re-examine pretrial publicity

Wednesday, October 14, 2009

WASHINGTON — The Supreme Court yesterday signaled that it may be ready for an
Internet-era review of the impact of massive pretrial publicity on the fairness
of criminal trials.

The issue of pretrial publicity has been more or less settled for decades,
with judges employing a range of tools to prevent juror prejudice, including
extensive juror examination, sequestering the jury, postponing the trial, or
changing its location.

But the high court yesterday granted review in the case of former Enron
President and CEO Jeffrey Skilling, convicted for his role in the collapse of
the energy firm in 2001. One of Skilling’s assertions is that “massive pretrial
publicity and extraordinary community passion” in Houston before and during his
trial created a “presumption of juror prejudice” that should have resulted in
automatic reversal of his conviction on appeal.

Skilling’s petition also raised other issues, claiming that the federal law
criminalizing “honest services” fraud is “unconstitutionally vague.” But two
other cases on the Court’s docket already address that law, so it is possible
that it was Skilling’s pretrial-publicity claim that attracted the Court’s

“I hope they don’t revisit the issue,” said Kevin Goldberg, outside counsel
for the American Society of News Editors (formerly the American Society of
Newspaper Editors). “But they could be thinking that in the Internet era,
pretrial publicity is not as easy a question anymore.”

Goldberg says he thinks the current methods for screening jurors for fairness
still work, but some criminal-defense lawyers say the intensity and worldwide
scope of Internet coverage make it harder to find an untainted jury in
high-profile cases.

Skilling’s petition, authored by lawyer Daniel Petrocelli, recounts the
“non-stop” media coverage of the Enron debacle in Houston, where thousands of
residents lost jobs and savings. One column in the Houston Chronicle bore
the headline, “Your Tar and Feathers Ready? Mine Are.” A local rap song was
titled “Drop the S off Skilling.” Prosecutors fueled the coverage with
statements about Skilling being a “corporate crook,” his brief claims. Polls
showed Houstonians overwhelmingly believed Skilling was guilty before any trial

The trial judge denied Skilling’s motion to change venue because of the
publicity, and jury selection proceeded. Questionnaires filled out by potential
jurors revealed that 80% already had negative views of Skilling, his attorneys
claim. Many were struck from the jury pool, but Skilling said more should have
been, and the questioning should have been more extensive. A jury was finally
chosen over the objections of Skilling’s attorneys, and Skilling was

On appeal, the 5th U.S. Circuit Court of Appeals agreed with Skilling that he
should have been entitled to a presumption of juror prejudice. But the appeals
court said that the trial judge’s decision not to change venue was not
“reversible error,” because the government had rebutted the presumption by
adequately showing that a fair jury was impaneled.

When publicity and community anger is so massive that it creates a
presumption of prejudice, Skilling’s attorneys claim, jurors’ statements about
their ability to be fair should not be trusted, and the government should not be
able to use those statements to rebut the presumption.

Solicitor General Elena Kagan, in a brief responding to Skilling, said there
should not have been a presumption of juror prejudice, because juror examination
screened out those potential jurors who were prejudiced, and overall the pool
was not “fatally saturated with pretrial publicity.” Many potential jurors said
they had not followed the Enron scandal in detail.

The government brief continued, “Pretrial publicity and community reaction
may give rise to a presumption of jury prejudice, but the trial is not
fundamentally unfair or unreliable when no biased juror actually sits.”

The case is Skilling v. U.S.

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