Did Enron exec get a fair trail?

NY Times:

When Enron collapsed in 2001, thousands of employees at its Houston headquarters lost their jobs and savings, and the city’s economy reeled. Much of the public’s anger was directed at Jeffrey K. Skilling, the company’s former chief executive.

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 trio of local television news programs. 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, cut 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, the federal government urged the court not to adopt an approach prompted by the proliferation of new media that would “in the most nationally significant cases make it impossible to hold a trial anywhere.”

To a far greater extent than in recent history, Solicitor General Elena Kagan told the court, “publicity of noteworthy events is nationwide in scope. By its nature, 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 can be done to control the intensity of media 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 of 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 press coverage and community outrage was almost inevitable given Mr. Mohammed’s confession to planning the Sept. 11 attacks. But would that intensity of feeling have been any less anywhere else in the United States?

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The KSM issue could be resolved by trying him before a military commission. That alternative was not available to Skilling. While the Chronicle had its examples of extreme anger, the NY Times was not without its own sense of outrage, but some of that was using the case as a prop to unfairly attack President George Bush. Op-ed columnist Paul Krugman said the scandal would be bigger than the 9-11 attacks.

I think the answer is going to be in a large community the courts can usually find enough disengaged and ignorant people to fill out an "untainted jury."