Thursday, January 26, 2006

Lay and Skilling Seek a Delay in the Start of Their Trial

Enron conspiracy defendants Ken Lay and Jeffrey Skilling have petitioned the Fifth Circuit for an order delaying their trial so that the appellate court can consider their appeal of District Judge Sim Lake's denial of their motion for a change of venue.  On Monday, Judge Lake denied again the defense request to move the trial from Houston to another district due to the widespread negative publicity about Enron and their alleged role in the collapse of the company.  I think the likelihood of the Fifth Circuit ordering a change of venue, or delaying the proceeding to consider the request, is somewhere between slim and none.  Federal Rule of Criminal Procedure 21(a) (here) authorizes the district court to order a change of venue due to prejudice under the following standard: "Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there." 

It is not just any prejudice, but prejudice "so great" that a "fair and impartial trial" cannot take place, a very high threshold for the defense to meet.  Judge Lake has sent out an extensive questionnaire to the jury pool to ferret out potential prejudice, and the actual voir dire has not taken place to determine whether jurors have been tainted by the pretrial publicity and the effects of Enron's collapse on the local economy.  The defense argument is largely supposition at this point, and the Fifth Circuit is unlikely to intervene before any voir dire and determination of actual prejudice.  Moreover, because the defendants have a decent chance at an acquittal, given the nature of the case, the court of appeals will probably take into account the fact that a not guilty verdict would obviate any need to deal with the issue further.  The Fifth Circuit can take a pass on this issue until forced to confront it after a guilty verdict, if there even is one.  A Houston Chronicle story (here) discusses the defense motion to postpone the trial. (ph)

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