June 24, 2010

7 new Supreme Court cases — including a win for Jeffrey Skilling.

Start reading!

Especially conspicuous:
In Skilling v. United States (08-1394), the Court affirmed in part, reversed in part, and remanded in a main opinion by Justice Ginsburg.  The vote is unanimous on the “honest services” question in this case, but three Justices would have ruled that the honest services statute is unconstitutional:  Scalia, Thomas, and Kennedy.  There are an array of other concurrences in the case, including a partial dissent by Justice Sotomayor, joined by Justices Breyer and Stevens.

Holding: (1) Pre-trial publicity and community prejudice did not prevent Skilling from having a fair trial. (2) the “honest services” statue covers only bribery and kickback schemes.  Part of the opinion vacates the Fifth Circuit’s ruling on Skilling’s conspiracy conviction.  In her dissent, Justice Sotomayor disagrees with the Court’s conclusion that Skilling had a fair trial before an impartial jury.
SCOTUSblog falls prey to the statue-for-statute typo. I picture a ghostly statuesque demon that swipes at the hands of anyone trying to write statute. We all know how to write statute, and lawyers and lawprofs have far more occasions to type the word statute, but something drags us to statue. Perhaps it isn't anything supernatural, but a desire to escape from the legal structure we've imposed on our lives and to experience the freedom and beauty of art. No, no, not another statute! I would prefer a statue!

Woman with a Brancusi

But of the subject of imposed confining structures: Will Jeffrey Skilling, the Fiend of that Terrible Corporation Known as ENRON, break free of the iron grip of federal prison? From the opinion (linked above):
Whether potential reversal on the conspiracy count touches any of Skilling’s other convictions is also an open question. All of his convictions, Skilling contends, hinged on the conspiracy count and, like dominoes, must fall if it falls. The District Court, deciding Skilling’s motion for bail pending appeal, found this argument dubious, but the Fifth Circuit had no occasion to rule on it. That court may do so on remand.
Skilling was convicted 5 years ago, by the way. Isn't it disturbing that justice takes so long, even — especially? — for a very rich man?

I wonder what Obama and his cohort will make of this new opinion, which limits the ability of federal prosecutors to go after the nefarious men who run corporations.


HT said...

I expect the deep water drilling moratorium issue to be going to the Supreme Court.

Synova said...

In the pilot of _The Good Guys_ the earnest young detective is in the dog house for correcting the Captain in front of the Chief.

"But," he says to the Lieutenant, "there is no such thing as a statue of limitations."

(BTW, you all MUST watch this show. Particularly if you were alive and aware in the 80's.)

Jim said...

Statue and statute:


rhhardin said...

Typing is governed by the brain in spare cycles.

Familiar paths are followed.

It's like falling off a horse. You never forget how.

The Dude said...

Based on what I see, many modern sculptors produce statues of limitations.

A.W. said...

on statute v. statue...

I remember in a silly fantasy novel that they were told they had to hurry before the Statue of Limitations ran out. it was a real statute, that moved slowly, running out of the chamber it was in. they had to beat it.

it was by piers anthony but i can't remember the title to save my life. i remember distinctly it had a female centuar with wings. i want to say it was in the xanth series?

Anyway, one whole novel of bad puns turned into story was enough, never touched the series again.

A.W. said...


disagree. i expect that the 5th circuit will uphold it and the SC won't even bother. Its really pretty black letter law.

Joe said...

To counter Synova, I must add that The Good Guys is one of the worse TV shows I've ever seen. Please don't watch it.

Synova said...

LOL, Joe. You're so funny.

It does seem to be a show without a middle ground, as far as opinions go. The pilot was the best, I think, and still on Hulu.com if anyone wants to see what they think, but the following episodes have been funny, too.

It's *supposed* to be ridiculous.

Brian said...

I like that show the Good Guys. It's by the same people that do "Burn Notice." In fact, both shows (and "Royal Pains") are in sorta the same vein, with someone trying to redeem himself after a fall from grace. And having to work with whoever they can to do it.

Brian said...

Dang, and that other show I sometimes watch, "White Collar," is also like that. Can you tell I watch USA network?

Characters welcome.

Michael said...

I'm not so sure about Skilling but Black got a very raw deal. Maybe he can get out a little earlier.

Richard Dolan said...

Not just Skilling but Conrad Black too.

This is the second time the SCOTUS has rejected the "honest services" theory of mail/wire fraud. In the 1980s, the SOCTUS rejected the judge-made version in the McNally case; this case rejects (mostly) the legislative attempt to overturn McNally. The "honest services" prong of the mail/wire fraud statutes now applies only if the deprivation of "honest services" involves bribery or kickbacks paid by a third party.

Bribery and kickbacks are already illegal in most contexts anyway. As now construed, the "honest services" theory of mail/wire fraud may federalize a few cases where bribery or kickbacks were not independently indictable on some other federal theory. But "honest services" is mostly dead as a basis for a federal mail/wire fraud indictment. Good riddance.

But Skilling (and Black) are hardly free men yet. In both cases the SCOTUS remanded for further proceedings, and both Skilling and Black had convictions on other charges. Whether spillover prejudice or some other argument will be enough to get them out of these cases remains to be seen. Black is in much the better position (his only other conviction was for obstruction). The gov't oftens wins on those remands. If Skilling's other convictions are upheld, he may end up with a resentencing that accomplishes little in terms of reducing his time in prison.

But any win for a defendant on an appeal from a federal conviction is pretty rare.

Cedarford said...

Isn't it disturbing that justice takes so long, even — especially? — for a very rich man?

America replaced "swift and sure" justice with Talmudic-style justice where the debate and the appeals and the glory of the process - trump the need for speed and results.

It's not just rich people benefiting from lawyer appeals and lawyer lobbyists that create the laws the Elites want.
KSM won't see the inside of a court with civilian lawyers dressed in robes for 9 years.
Murder trials take 3 years, and appeals for life sentences and death penalties now take decades to run their course.
Business and "urgent to nation projects take decades to go through courts.

Cabals of insurance company lawyers and the people they buy inside the "justice system" ensure obvious liabilities for injury take many. many years - IF the injured can afford to sue.

Phil 314 said...

Even when we're not talking about _________ I see terms such as "talmudic" and "cabal".

Man, open your mind.

Wince said...

"Fine, it's a sculpture of limitations."

Beth said...

Our local paper speculates this will mean some of the counts against William Jefferson was convicted of will be thrown out on appeal. And Judge Thomas Porteous.

The Dude said...

Kramer's physical comedy was top notch. His understanding of words white people can't use, not so good.