As I research Enron Broadband Services (EBS) and talk with people involved in the case, I continue to discover fascinating stories. Here is one about EBS defendant Rex Shelby and the pre-trial change of venue motion by the EBS defendants.
After Joe Hirko, Scott Yeager, and Rex Shelby were indicted by the federal prosecutors of the Enron Task Force (ETF), they had a number of studies done to determine what the atmosphere of bias was for a trial in Houston. Study after study showed that the Houston populace was locked into a witch hunt mentality. More than 85% of the public consistently stated that any executive indicted by the ETF was automatically guilty and should be convicted — most importantly, these people said that nothing could change their minds on this point — in other words, they admitted that they could not be an unbiased juror.
Logically, the EBS defendants filed a motion for a change of venue for the trial (meaning a move of the trial to someplace other than Houston) in order to have a chance of getting an unbiased jury. Of course, Judge Vanessa Gilmore denied the motion. Even though to any rational person, a change of venue would seem to be a reasonable and necessary action in a situation such as the one the EBS defendants faced, the Judge denied the motion. The sad truth is that it is next to impossible to get a change of venue in the USA — the courts find it “inconvenient” for themselves and the courts’ convenience always seems to trump the defendants’ rights.
In opposing the defendants’ change of venue motion, the federal prosecutors essentially gave the same two ridiculous arguments that prosecutors and judges always give in opposing a change of venue motion:
1. Even though 85% of the jury pool is tainted, 15% is not tainted. And Houston is a big enough place such that 15% of the population is a large enough pool to contain 12 unbiased jurors.
2. Even though an 85% tainted jury pool is admittedly horrible, most of the other places in the country show in the neighborhood of a 70% anti-Enron bias — therefore, moving the trial would not benefit the defendants much. The prosecutors argued that a 70% tainted jury pool is only about 17% better than an 85% tainted jury pool — the formula the prosecutors used was (85%-70%)/85%.
Now, if you don’t think too hard about those arguments, they seem kind of reasonable, right? However, they totally ignore the actual real-world jury selection process (called “Voir Dire”). Here is where my research and interviews about EBS bore fruit. I understand that EBS defendant, Rex Shelby, who has a mathematics and engineering and computer science background researched the Voir Dire process and came up with an interesting response to the two points above.
Regarding point 1, Shelby discovered that, in a typical felony jury trial, a court will order 65 potential jurors to be brought to court for the process of jury selection, from which the attorneys are tasked to chose 12. Now, if 15% of that group are unbiased, that means that there could be only 10 unbiased jurors available for selection in a group of 65 potential jurors. There is statistically no possible way to get 12 unbiased jurors from an actual real-world jury selection process when only 15% of the jury pool is unbiased!
But Shelby found that the situation is even a lot worse than that. During the jury selection process, each side is allowed 10 “peremptory strikes”, meaning that each side can get 10 jurors eliminated from selection without giving any reason. Therefore, when only 15% of the jury pool is unbiased, the prosecutors can strike the only 10 unbiased jurors available to the defendants. If the prosecutors make the right choices, they can ensure that there is not even a single unbiased person on the jury, and there is little the defendants can do about it. Think about that for a minute — in Houston, given the 85% anti-Enron bias, it was simply impossible to seat a jury with even a single unbiased juror!
Regarding the prosecutors’ point 2 above, Shelby turned that nonsense on its head. He pointed out that to get the statistics right, you must look at the size of the unbiased pool, not the biased percentage. An increase of an unbiased jury pool from 15% to 30% is an increase of 100% (not the 17% that the prosecutors claimed) — that is, it doubles the possibility that the defendants can get a fair trial. Instead of 10 possible unbiased jurors in the selection pool, there would be 20 possible unbiased jurors in a location other than Houston.
And if you consider the peremptory strike rule, the improvement is more dramatic than that. In Houston, with the strikes, the jury is composed of zero unbiased jurors. In another location, up to 10 unbiased jurors have a chance of being selected for the jury without the ability of the prosecutors to strike them off. That is still not 12 unbiased jurors, but 10 is infinitely better than zero!
I understand that Rex Shelby even created some simple pie charts that he wanted to use in an oral reply to the prosecutors’ inane arguments. Shelby’s logical argument was that change of venue should be automatic when there is no statistical possibility of getting an unbiased jury in a given location. Shelby believed it was a constitutional due process issue — every defendant has a constitutional right to a fair trial — but if there is no way to seat an unbiased jury, then a fair trial is, by definition, impossible. Therefore, it is the duty of the Court to find a way to ensure a fair trial or to dismiss the charges when a fair trial is not possible.
Unfortunately, Rex Shelby did not get to present his argument and pie charts to Judge Gilmore — the Judge did not permit an oral hearing — she simply denied the EBS defendants’ change of venue motion without explanation.
Now, here is an fascinating postscript to this story. I understand that, alone among the five EBS defendants, Rex Shelby actually preferred a trial in Houston. I was told that Shelby believed that Houston was his hometown, and he wanted to beat the federal prosecutors in a Houston courtroom with Houston jurors. Shelby believed that the federal government’s case was so obviously false and ridiculous that he could prove his innocence even to jurors who had steadfastly professed their anti-Enron bias. However, Shelby went along with the other EBS co-defendants on the change of venue motion. I find this gem of information about Shelby fascinating — he wanted the trial in Houston, in spite of his own analysis about the utter unfairness of the location. And, at the same time, he did not let his personal preferences interfere with his rigorous research on the topic in order to make the defendants’ argument for a change of venue as compelling as possible.
In the end, the EBS defendants went to trial in Houston knowing upfront that they were presumed guilty by all the jurors and that they must prove their innocence at trial. And, against all odds, they accomplished just that. After three and one half months of trial, the federal prosecutors got zero convictions out of about 200 total counts against five EBS defendants. I guess Rex Shelby was right!