Can Enron's Jeff Skilling Get A New Trial?

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The Supreme Court Monday afternoon could begin to put to right one of the most obvious trial-court mistakes of the last decade. The Justices hear argument from Jeffrey Skilling's lawyers, who doggedly claim their client, the broadly despised former Enron chief, was unfairly tried in federal court in Houston, the very heart of the scene of an enormous financial crime that directly affected tens of thousands of local residents.

This time, alas, the bad guys are right. Skilling (and his boss, Kenneth Lay,) never should have been tried in that city at that time. Never mind the case's earnest "honest services" dispute, if the federal rules governing venue changes are ever to have anymore meaning -- if a high-profile client ever is going to get the benefit of his or her constitutional right to an "impartial" jury -- the Supreme Court is going to have to grant Skilling a new trial. It would be a decision as unpopular as it would be legally justified. 

Four years ago, before Skilling and lay were tried and convicted, I wrote about this very topic. The headline of the 2006 column was "Time to Move Enron Trial" and, reading through it now, it's easy to see why. Here's the lede:

Apparently you are not alone if you think that former Enron CEO Jeffrey Skilling is a "high-class crook" who "would lie to his mother if it would further his cause" and that Enron founder Kenneth Lay may be "the biggest lying crook of all" who "did a lot of injustice to a lot of good people." And if you think you are the only person in the world who thinks that Lay is "guilty without any doubt" and that Skilling is "the biggest liar on the face of the earth," then think again.

And here's another instructive paragrah:

Here, according to the defense motion, is what potential jurors had to say about Skilling; they described him as "the devil," "a thief,", "a cheater," "brash, arrogant, and conceited," "dishonest," and "without a moral compass." Lay, meanwhile, was described as a "low down scumbag," "crooked," and "a snake in the grass" who "made too much money by screwing other people over." Remember, this is what potential jurors who haven't yet been rejected from the jury pool were willing to write down, knowing that a judge and the lawyers in the case would read their words. Imagine what they really think about the men who face serious prison time if convicted! The filing, and the current atmosphere surrounding these defendants, reminds me of the line in the old Western: first we'll have a trial and then we'll hang 'em.

The judge for Skilling and Lay at the time, U.S. District Judge Sim Lake downplayed these remarks and allowed the trial to proceed, arguing that the pretrial prejudice which existed in the Enron case was different from the pretrial prejudice which had caused another federal trial judge, U.S. District Judge Richard Matsch, to move the Oklahoma City bombing trials of Timothy McVeigh and Terry Nichols to Denver and away from the scene of the Alfred P. Murrah Federal Building. I covered that trial, too.

Reviewing Judge Sim's order keeping the Skilling and Lay trial in Houston, a federal circuit court determined that the trial judge should have presumed prejudice against the defendants   (for all of the reasons set forth above) and forced federal lawyers to overcome that presumption by showing a lack of bias (which wasn't going to happen). The 5th U.S. Circuit of Appeals upheld Skilling's conviction anyway (Lay is dead, remember) declaring that Judge Sim had adequately screened jurors (he hadn't).

So the Supreme Court has been waved in to elaborate once again the legal standards which ought to apply whenever a high-profile, highly-despised defendants raises a legitimate constitutional arguments for moving a trial where a more impartial jury may convene. No one really wants to see Skilling in court again. But that's no excuse for not breathing a little life into the dormant venue rights each and every one of us have.

As a pure matter of law, Jeffrey Skilling deserves a new trial. Colorado, anyone?  

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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