A Houston Chronicle column about his trial on fraud charges was headlined “Your Tar and Feathers Ready? Mine Are.” A rap song appeared called “Drop the S Off Skilling.” And potential jurors in Mr. Skilling’s trial told the court that he was “a high-class crook” who “should be reduced to having to beg on the corner and live under a bridge.”
The Supreme Court will hear arguments Monday on whether Mr. Skilling’s conviction should be overturned because the prejudice against him in Houston was so strong and pervasive that he could not receive a fair trial.
It has been two decades since the Supreme Court has considered a major change of venue case, and its jurisprudence is still rooted in decisions based on small communities dominated by a single local newspaper and perhaps a few local television news outlets. The law has been slow to adapt to a more general, more intense and yet more atomized media environment.
How potential jurors become informed in the Internet era, experts in jury behavior said, cuts in two directions. It may now be harder than ever for defendants to find wholly untainted jurors in their own communities. At the same time, a change of venue in a truly high-profile case is less likely than ever to solve the problem.
In a brief to the Supreme Court in the Skilling case, the federal government urged the court not to adopt an approach prompted by the proliferation of new media that would mean “no trial will be possible in the most nationally significant cases.”
To a far greater extent than in recent history, Solicitor General Elena Kagan told the court, “publicity of noteworthy events and prosecutions is nationwide in scope.”
“By its nature,” Ms. Kagan continued, “media coverage carried on national networks, cable stations and the Internet is not confined to the venue in which the crime is committed.”
Some legal experts said that little could be done to control the intensity of news coverage in highly publicized cases. “In national cases, pretrial publicity effects may not be remedied in any imaginable way,” said Steven D. Penrod, a professor of psychology at John Jay College of Criminal Justice in New York, “because there are not venues in which there is no prejudice.”
The court’s decision about how trial courts should respond to claims of prejudicial pretrial publicity may have a lasting and widespread impact.
“They don’t address this a lot,” Laurie L. Levenson, a professor at Loyola Law School in Los Angeles, said of the justices. “What does change of venue mean in the age of the Internet?”
The proposed trial of Khalid Shaikh Mohammed in Manhattan presented perhaps the most extreme example of this conundrum. Had the trial proceeded there, a change of venue motion based on local news coverage and community outrage was almost inevitable, given Mr. Mohammed’s confession to planning the Sept. 11 terrorist attacks. But would that intensity of feeling be any less anywhere else in the United States?
The trial of Timothy J. McVeigh for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people, was moved from Oklahoma City to Denver. (Mr. McVeigh was convicted and later executed.)
The judge in the case, Richard P. Matsch, explained why he had granted a change of venue motion: “The entire state had become a unified community, sharing the emotional trauma of those who had been directly victimized.”
Shari Seidman Diamond of Northwestern University, an authority on jury behavior, saw a parallel to Enron’s collapse.
“Houston was really hurt,” she said. “It was an assault on the community. The Enron-Houston link was palpably present in the same way that there was an intensity of feeling in Oklahoma City in the McVeigh case.”
Mr. Skilling’s Supreme Court case has received more attention for a second issue it presents, that of whether the law under which he was convicted is unconstitutionally vague. His is the third Supreme Court case this term considering the law, which makes it a crime to deprive another person of honest services.
The touchstone case on the change of venue issue is a decision from almost 50 years ago in which the Supreme Court threw out the conviction of Wilbert Rideau for the 1961 murder of a bank teller in Lake Charles, La. The local television station broadcast Mr. Rideau’s 20-minute filmed interrogation three times over two days, reaching an estimated 20,000 to 53,000 people each time. Lake Charles’s population was about 150,000.
“Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality,” Justice Potter Stewart wrote for the majority in the 7-to-2 decision.
Mr. Rideau, who went on to be an acclaimed prison journalist, was released after a fourth trial in 2005.
The United States Court of Appeals for the Fifth Circuit, in New Orleans, was equivocal last year in affirming the trial judge’s decision to keep the Skilling trial in Houston.
There was, a three-judge panel of the court said, a “pervasive community bias against those who oversaw Enron’s collapse.” There was also, the panel said, “an extreme situation of inflammatory pretrial prejudice that literally saturated the community.” But it found that the prejudice had been overcome through a careful selection of jurors.
In its brief to the court, the federal government also said that any threat of bias had been countered by meticulous care in jury selection. More than a dozen news organizations, including The New York Times Company, filed a brief siding with the government. The brief argued that decisions on whether to move trials should not be based solely on the volume and tenor of news coverage. It added that a decision in Mr. Skilling’s favor might prompt trial judges to cut back on public access to the courts.
Mr. Skilling contends that the judge’s oral questioning of jurors in his case, lasting five hours, was too brief. Questioning of jurors for the trial of Zacarias Moussaoui, who was later convicted of conspiracy in connection with the Sept. 11 attacks, took two weeks. Questioning in the McVeigh trial took 18 days — after it was moved from Oklahoma City to Denver.
Some social science research indicates that jurors can be unaware of biases prompted by public controversy, and are reluctant to admit to them in any event. But many judges and experts in jury behavior say it is not particularly difficult to find unbiased — indeed, profoundly uninformed — jurors.
“This may come as a surprise to lawyers and judges,” the full United States Court of Appeals for the District of Columbia Circuit wrote in an unsigned decision affirming the convictions of top aides of President Richard M. Nixon in the aftermath of the Watergate scandal, “but it is simply a fact of life that matters which interest them may be less fascinating to the public generally.”