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Court may re-examine pretrial publicity

By Tony Mauro
First Amendment Center legal correspondent

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 attention.

“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 began.

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 convicted.

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.


Pretrial publicity in S.F. dog-mauling case prompts change of venue

Judge also grants news media’s request for most of grand jury transcript, refuses to lift gag order. 09.17.01

5th Circuit won't force release of transcripts in Enron cases

Houston Chronicle says federal judge failed to articulate compelling reason for closing pretrial hearings and that his actions violate First Amendment. 10.02.03

2009-10 Supreme Court case tracker

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