The U.S. Supreme Court on Monday heard arguments in the third of a series of challenges to the "honest services" fraud statute, this time in the context of the prosecution of former Enron Corp. executive Jeffrey Skilling. But most of the justices’ attention focused instead on the other major issue in Skilling’s case: whether the local jury pool in Houston was so poisoned by rage against Enron that it was impossible to pick an impartial jury — even when potential jurors said they could be fair.
Although several justices voiced concern about the impartiality of certain jurors in the 2006 trial, others seemed equally worried about second-guessing trial judges who have long been entrusted with screening out biased jurors during voir dire.
"I’m worried about a fair trial in this instance," said Justice Stephen Breyer at one point. But at another point he said he was concerned that, if the Supreme Court promulgates a rule defining when local bias should automatically trigger a change of venue for a trial, "we get into the business of running the trial court’s trials." Picking jurors will become harder and more protracted, Breyer fretted.
In his questioning about jury selection, Breyer said he was unfamiliar with the way most judges conduct voir dire — a reminder that, on the current Court, Sonia Sotomayor is the only justice with experience as a trial judge.
Skilling’s advocate, Sri Srinivasan of the Washington office of O’Melveny & Myers, began his argument on the juror bias issue, and for 20 of his 30 minutes of argument painted a picture of "deep-seated community animus" against Skilling and Kenneth Lay because of the "profound reverberations" in Houston of Enron’s 2001 collapse and bankruptcy. Sixty percent of potential jurors said they could not set aside their biases, and the entire legal staff of the U.S. attorney’s office in Houston recused, Srinivasan said.
As a result, he said, the risk of bias was too great to hold the trial in Houston, even if the judge’s questioning was more extensive than the five hours he spent on it.
"Because you think the [potential jurors] are going to lie, right?" asked Chief Justice John Roberts Jr. Srinivasan vigorously denied that, asserting that his concern was that, because of the alleged climate of prejudice in Houston, "there is a real concern that jurors will not feel fully free to return to that community delivering anything other than the conviction the community desires."
But Deputy Solicitor General Michael Dreeben countered effectively, emphasizing that the trial judge, Sim Lake of the U.S. District Court for the Southern District of Texas, had "15 years’ experience" in picking juries at the time, and made up for the brief examination of jurors with a detailed 14-page questionnaire aimed at detecting bias. "There was a fair trial," Dreeben said. He also accused Skilling’s lawyers of "immense distortion" in their portrayal of the pretrial climate among potential jurors in Houston.
On the broader subject of the "honest fraud," justices displayed some of the same skepticism they showed during arguments in the other two cases so far this term on the issue. Roberts said that, to determine what wrongdoing is covered by the law, "you need lawyers and research" to analyze court precedents and the evolution of common law. "That doesn’t sound like fair notice of what’s criminal." That comment appeared to bolster Srinivasan’s claim that the law is unconstitutionally vague.
Dreeben asserted that Skilling "absolutely misused his official position to serve what we say was his private interest in private gain."
Earlier in the term the Court heard Black v. U.S. and Weyhrauch v. U.S., cases attacking other definitions of honest services under the law. Skilling’s appeal is viewed as the broadest constitutional challenge to the statute.
The case argued Monday arose from the 2001 collapse and bankruptcy of Enron, then the nation’s seventh largest company. Skilling was indicted along with several other executives on securities and "honest services" fraud, but Skilling has insisted he is innocent and had no criminal intent in any of his actions. He was found guilty, and is serving a 24-year sentence as a minimum-security federal prison in Englewood, Colo. He was also ordered to pay $45 million in restitution.
Tony Mauro can be contacted at email@example.com.