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October 13, 2009

Should there special doctrines concerning "inflammatory" pre-sentencing publicity?

Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:

When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity."  And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.

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October 13, 2009 at 01:40 PM | Permalink


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Wasnt the Sam Sheppard (sp?) case out of Ohio?

Posted by: federalist | Oct 13, 2009 2:21:42 PM

Thanks for finding the petition. Though the reply may paint a different picture, there sure seems to be a strong argument here, and I feel .0005% better about Nancy Grace after learning of the presumption of prejudice rule. Joking aside, it is reassuring since I thought Stroble v California 343 US 181 (1951) was still controlling. The courts apparently reconsidered as the power of the media vastly expanded since 1951.

Posted by: George | Oct 13, 2009 4:49:29 PM

Before getting fancy, something basic is needed. Please define the burden of proofs, how they are measured, what are their reliability statistics, and how are they validated. After doing that, how is the amount of certainty reliably measured in each juror?

Assume beyond a reasonable doubt means 80% certainty. How can that be quantified? Can 10 jurors of 12 have 100% certainty and 2 jurors have 0% certainty, but they vote guilty just to go along and end their own ordeal and disruption of their lives?

If reason is defined as an ability to perceive the Catholic Godhead, would Jesus have someone executed knowing there is a 20% chance of being wrong about the guilt of the person?

I am asking a lawyer to get grounded in verifiable facts found in nature, not in the imagination.

Posted by: Supremacy Claus | Oct 14, 2009 6:52:41 AM

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