Supreme Court to consider role of ‘media tainting’ in trials

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There’s a lot of controversy in the Supreme Court this term: the possible overturning of the McCain-Feingold Act, the inevitable incorporation of the 2nd amendment under the 14th, and now: whether or not “searing media attacks” can taint a criminal trial — as former Enron executive Jeffrey Skilling says happened in his trial.

From SCOTUSblog:

The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges.  The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive.

So far, there’s been much talk about the Court’s thoughts on the “honest services” fraud  issue, which shouldn’t be too hard to predict. Justice Antonin Scalia’s pro-business (or at least anti-criminalization of business dealings) dissent in February’s Sorich v. United States decision, lays out a likely position for the majority in this .

But what I find more interesting then the foregone conclusion on “honest fraud” is whether the Court will find “searing media attacks” to be an adequate basis for appeal — or vacating a verdict or sentence.  It seems that this could easily open a Pandora’s box of problems litigating high-profile defendants. Could the civil judgment against O.J. Simpson be vacated? What about the sentence of Bernie Madoff? Or, more recently, could the media’s picture play a future role in the trial of Roman Polanski?

Looking at Skilling’s petition of cert, certainly doesn’t narrow the scope of the argument. “Skilling was pronounced guilty throughout Houston, long before trial,” the petition reads, and references headlines around Texas like, “Most Agree: Indictment Overdue” and ” Your Tar and Feathers Ready? Mine Are.”

Those seem like pretty run of the mill headlines in any kind of high-profile case, to me. There’s always the question of having a completely objective, untainted jury pool in trials — and many states require juries to be kept in isolation during trial to avoid being influenced by the media — or judge for that matter. But the idea is that people, and judges, can put the facts about feelings and render a verdict regardless. If the Court were to draw a line at media influence, it’s hard to say what the line would be if, but there’s a likelihood that it might create a bar towards prosecuting celebrities and other high-profile figures.