Jury Selection—Enron

Jury Selection for Ken Lay and Jeffrey Skilling begins today in the much-anticipated Enron trial.^[1] A criminal defendant’s right to a trial by an impartial jury is guaranteed by the Sixth Amendment to the United States Constitution, which states in pertinent part “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

The procedure for obtaining this impartial jury is found in the Federal Rules of Criminal Procedure [hereinafter FRCrP]. Rule 23 states that a defendant who is entitled to a jury trial, must have a jury unless he waives his right to a jury trial in writing, the government consents, and the court approves.^[2] The jury is composed of 12 members, though the parties may stipulate that the jury can consist of less than 12, or if the court finds there is good cause to excuse a juror.^[3]

During jury selection, prospective jurors can be examined either by the court or by the attorneys for the parties.^[4] In the Enron case, Judge Sim Lake will be questioning the potential jurors. There are nearly 100 prospective jurors from 14 Houston-area counties.^[5] However, Judge Lake must permit the attorneys to ask further questions that the court considers proper or to submit questions that the court may ask if it considers them proper.^[6]

Each side is entitled to a certain number of peremptory challenges.^[7] A peremptory challenge means that either side may excuse a juror for no official reason; since Batson, however, which we discussed a week ago, peremptory challenges based solely on race are not allowed. According to FRCrP 24, in a death penalty case, each side gets 20 peremptory challenges,^[8] while all other felony cases allot 6 peremptory challenges to the government and 10 combined peremptory challenges to the defendant(s).^[9] In the event an alternate juror is asked to step in, each side is entitled to additional peremptory challenges.^[10] Judge Lake has allowed the defense two additional peremptory challenges (bringing their total to 12) and there will be 2 additional challenges for each side when it is time to select 4 alternate jurors.^[11] Both sides have unlimited challenges for cause, but if they choose to exercise those challenges, they must make a compelling argument that requires that that juror should be excused.^[12]

Up to 6 alternate jurors may be selected to replace any jurors who are unable to perform or who are disqualified from performing their duties.^[13] Alternate jurors must have the same qualifications and be selected in the same manner as any other juror, and they replace jurors in the same sequence in which the alternates were selected.^[14]

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[1] See, e.g., Order in the Court: Enron Jury Selection Begins, Houston Chronicle, Jan. 30, 2006.
[2] FRCrP. 23(a).
[3] Id. 23(b).
[4] Id. 24(a)(1).
[5] Chronicle, supra note 1.
[6] Id. 24(a)(2).
[7] Id. 24(b).
[8] Id. 24(b)(1)
[9] Id. 24(b)(2).
[10] Id. 24(c)(4).
[11] Mark Babinek, Agreeing on 12 Enron Jurors No Easy Feat. Houston Chronicle, Jan. 30, 2006.
[12] Id.
[13] FRCrP 24(c)(1).
[14] Id. 24(c)(2).