Analysis
The Supreme Court on Monday found itself shifting between worry that the judge who tried the biggest Enron scandal case may not have done enough to assure that a fair jury was chosen, and worry that the Court should not try to micromanage how trial judges handle that process. The Justices seemed far more interested in the jury issue than in the other high-profile question before them in Skilling v. U.S. (08-1394) — whether former Enron Corp. CEO Jeffrey Skilling was convicted of violating an unconstitutional law.
With Justice Stephen G. Breyer leading the way, the Court probed deeply into the questioning of potential jurors at Skilling’s trial in Houston, examining whether District Judge Sim Lake took too little time to ferret out potential prejudice or stopped short of following up to test jurors’ pre-trial intimations — or outright conclusions — that the accused Enron brass deserved to be convicted. Several of the other Justices questioned the brevity of that probing, but there was no evident consensus about what the Court should now do about it. Even Justice Breyer, who was the most troubled about Judge Lake’s performance (“I’m genuinely concern about a fair trial”), repeatedly stressed that he did not want the Court to go too far to second-guess such performances. “I’m worried about controlling too much,” he said on the second point.
One point, though, was clear: no member of the Court appeared to embrace Skilling’s core argument that the jury-selection process, even if more extensive, could never be a cure for massive negative feeling in a community about a criminal case.  The Court appeared to accept that the Enron prosecution did occur in a pressure-cooker of revenge sentiment in Houston, yet was not yet ready to lay down sweeping new limitations on how judges should respond to that kind of atmosphere.
Although Justice Breyer indicated near the end that at least he would now want to go back over, very carefully, the questionnaires the Enron jurors had filled out, and the questioning that they underwent during a mere five-hour session to check for bias, his was not the only voice of concern. Justice Sonia Sotomayor — a former trial judge who no doubt is familiar with jury selection for criminal trials — also displayed considerable skepticism about Judge Lake’s methods. However, she also was somewhat skeptical about how well Skillling’s defense team had handled the jury selection process.
Skilling’s lawyer at the podium, Sri Srinivasan, set the agenda for the hearing by beginning with the juror prejudice issue, in an apparent indication of a strategy to try to get a completely new trial for Skilling, rather than a reversal on, say, the conviction for failing to provide “honest services” to Enron’s shareholders by pushing up the company stock’s price. (Even when the Court began exploring the “honest services” law, after Chief Justice John G. Roberts, Jr., raised it, the argument was somewhat lacking in fervor. That may be an indication that, having already hear two other cases this Term testing that law’s scope, the Court either has made up its mind to pare it down or did not see much new about it in this case, even though Skilling has posed a direct constitutional challenge to it.)
On the juror bias issue, Srinivasan put most of his emphasis on the impact on community attitudes from the economic collapse of Enron, treating the “vitriolic” publicity in the media almost as a secondary concern.  Even if some jurors had paid little or no attention to the publicity, the jury pool itself was people with local citizens who had felt the impact, and resented it, he argued. Even though those attitudes emerged in some of the jurors’ questionnaires, Srinivasan complained, Judge Lake failed to follow up, and essentially curbed the defense lawyers’ chances to follow up.  Some of the jurors, he said, would not have felt free to return to the community if they had not brought in convictions.
He was only a little way into his argument before Justice Breyer started probing for “how we sketch the line” between an adequate and an inadequate exploration of potential jurors’ actual or perceived biases. Srnivasan sought to lay down some standards, but Breyer seemed less than satisfied with that attempt at assistance.
When the Court reached the “honest services” issue, Skilling’s lawyer sought to reinforce the deep skepticism that some of the members of the Court are known to already feel about the open-ended sweep of that law. Srinivasan suggested that the way the Justice Department was now interpreting that law would suggest that i would reach virtually any lie that any worker told in the workplace about his job performance.
Deputy Solicitor General Michael R. Dreeben, defending the verdict in the case as well as Judge Lee’s handling of the potential bias issue, sought to portray the Skilling team’s depiction of the procedure as exaggerated.  He had uttered only a few sentences, however, when Justice Sotomayor pressed him on whether there had been any other “high-profile case” in which juror selection was limited to only five hours. Dreeben said he knew of none, but insisted there was no problem with the way it worked out in Skilling’s case.
It was then that he ran into the barrage of Breyer’s questions. The Justice said he had gone over the entire examination of potential jurors, and began to point out what he clearly was portraying as an insufficient response by Judge Lake. One potential juror (who was not seated) had lost $50,000 to $60,000 as a result of Enron’s collapse, but, Breyer noted, the judge refused to dismiss her from the case for “cause,” as the defense asked.  After Breyer had gone over several instances, Dreeben suggested that perceptions of what had gone on might be different now for someone “sitting with a cold record” rather than having been there for the actual proceeding.
After further probing by Breyer and then by Sotomayor, Dreeben accused the Skilling defense of engaging in an “immense distortion,” of putting together “a highlight reel” of instances of prejudice against the Enron executives. Somewhat sarcastically, he suggested that the defense was arguing that “all 4.5 million people in Houston were infected with pervasive prejudice.”  The Justice Department lawyer also tried to counter by arguing that the Court has traditionally been willing to trust jurors to put aside the opnions that they may bring to court in the beginning.
That Dreeben was not making much headway seemed clear when Justice Anthony M. Kennedy, who had sat back without taking a full part, sat forward and said that a five-hour period of juror examination “seems about standard” but only for a case in which there has been “no strong showing of prejudice….It is hard to think of a much shorter” juror selection process.  Dreeben fought back, drawing a contrast between the trial of Oklahoma City bomber Timothy McVeigh, in a case in which 168 people, including many children, had killed, and the economic misdeeds trial of Skilling and other Enron executives. It took 14 days to pick the McVeigh verdict, but that case was not comparable to a trial involving “the financial meltdown of Houston,” Dreeben argued.
When Dreeben’s side of the argument moved on to the “honest services” fraud issue, he suggested ways for the Court to interpret the law to get beyond any problem of vagueness in what it covered. But that only drew a retort from Kennedy, who suggested that “the point is that the Court shouldn’t rewrite the statute; that;s for Congress.”  Justice Antonin Scalia, a known foe of the “honest services” law, also lectured Dreeben on what the Justice saw as the excessive reach of the law — a theme echoed through the remainder of the argument by others on the bench.
Srinivasan made creative use of his rebuttal time, bringing out that the criminal trial of homemaking guru Martha Stewart involved six days of juror selection,in a case in which there was not evidence of “deep-seated passion and prejudice” among jurors.
The Court is expected to decide the case by late spring or early summer.
CLICK HERE FOR FULL VERSION OF THIS STORY