Legal Briefing: Justices Could Grant Enron's Skilling a New Trial

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Justices Review Fairness of Process, not Skilling's Guilt or Innocence

The former Enron CEO Jeffrey Skilling is reviled in many quarters, justly so, some would claim. The very idea that he may get a new trial enrages people. However, the Supreme Court's primary method of defending our constitutional rights in criminal cases is by overturning convictions, even if the guilty party is a despicable person. Miranda, of the famous Miranda Warnings, was a convicted kidnapper and rapist. The Court's ruling in this case will have ramifications for all criminal defendants going forward.

Supreme Court Justices Were Dismissive of Skilling's Venue Argument

At Monday's oral argument, Jeff Skilling's attorney Sri Srinivasan asked the Supreme Court for a new trial because, he claims, the jury was so biased against Skilling from the outset that conviction was inevitable; the trial wasn't fair.

Srinivasan went so far as to assert that no Houston jury could have been impartial and the trial should have been held outside of the city. He claims a new trial is warranted on that basis alone. Enron's impact on Houston, the lawyer essentially said, was like Timothy McVeigh's on Oklahoma City. McVeigh's trial was moved, Skilling's should have been, too.

The justices were not impressed with this argument or analogy. Justices Sotomayor and Alito directly challenged the idea that 12 unbiased jurors could not be found among Houston's 4.5 million people, and Justice Ginsburg dismissed the Oklahoma City comparison as apples and oranges; money was the lost in Houston, lives were lost in Oklahoma City.

Justices Were Receptive to Claims Jury Selection Was Fatally Flawed; Could Overturn on That Basis

In every case, potential jurors are asked questions to assess whether or not they can decide the case at hand fairly, a process known as "voir dire." Based on their answers, both the prosecution and defense have the right to reject a limited number of potential jurors, either for cause, meaning the juror has clearly shown bias, or for undisclosed strategic reasons -- "preemptory challenge" -- unless that rejection is based on something impermissible like race.

The potential jurors in Skilling's case completed a 14-page questionnaire, which revealed many suggestions of bias, including answers like "I think they're all guilty." The judge followed up the questionnaires by speaking with each juror individually for four and a half minutes. Attorneys for both sides were told they could only ask limited follow-up questions.

Justice Breyer pushed hard against the government's attorney Michael Debreen on the adequacy of the questioning. Moreover Breyer worried that the trial judge had allowed too few dismissals for cause, greatly increasing the risk of a biased jury. Breyer said he did a quick count and found the defense had to use preemptory challenges for five jurors who should have been dismissed for cause, including a woman who had herself lost $50,000 to $60,000 from the Enron fraud. Typically, victims of a crime are barred from jury service about a crime for cause.

Mr. Debreen defended the voir dire process, emphasizing the trial judge's many years of experience and the fact that the judge was the only one able to look into each potential juror's eyes and assess his credibility. Justice Breyer was troubled by the idea of second-guessing the trial judge, noting that he himself lacked trial experience. (Of all the justices currently on the Supreme Court, only Justice Sotomayor has had trial court experience.)

Justice Breyer pushed Mr. Srinivasan on the question of where the line defining adequate voir dire could be drawn; if the Court overturned Skilling's convictions on this ground, how could it come up with a workable rule that would not result in micromanaging jury selection in every trial? Mr. Srinivasan didn't directly answer; instead he suggested that the threshold condition -- trying to find a jury from a community devastated by the crime -- would limit the application of any new standard sufficiently.

And in the end, that's the big question. If the justices agree that the voir dire process was so flawed an impartial jury could not be assured, how do they allow the conviction to stand, knowing judges from then on may allow equally flawed processes with impunity? But if they strike it down, how do they do it so they only prevent clearly wrong processes, leaving trial judges free to function normally in most cases? If they can figure out a rule they believe workable, I'm betting the justices grant Skilling a new trial.

Honest Services Fraud Statute Will Not Survive Intact

The Supreme Court will also consider a separate legal issue in Skilling's case: Whether the "Honest Services" fraud statute, one of the laws the jury found he violated, is constitutional. This is the third case the Court has taken this term that addresses the scope of the statute, which makes it a crime to deprive someone of their intangible right to "honest services." Two of the cases invite the Court to narrow the statute, while Skilling asks that it be struck down as unconstitutionally vague. It's hard to imagine that the justices will rule in all three cases in a way that preserves the current interpretations of the statute, and it's not hard to see them striking it down, insisting it's Congress's job to narrow the statute acceptably, not theirs.

A decision in Skilling's case is expected late spring or early summer.