Legal News

Pregaming Jeff Skilling?s Big Day at the Supreme Court

By Ashby Jones

Before letting you slide off for the weekend, LBers, let us remind you that the Supreme Court oral arguments in U.S. v. Skilling are slated to take place Monday morning at 1 p.m.

The issues the court has agreed to hear are these: whether the federal “honest services” statute, under which Enron’s Jeff Skilling was prosecuted and convicted, is unconstitutionally vague, and whether the trial judge’s decision not to move Skilling’s trial out of Houston violated Skilling’s due process rights.

Skilling’s appeal requests a new trial, to be held outside of Houston.

For now, we suggest taking a look at two “walkup” pieces on the hearing. The first, Lyle Denniston’s at Scotusblog, gives a wonderful overview of the case and provides good context on why the case is attracting attention from such a wide swath of the white-collar community. Writes Denniston:

But, among those who specialize in criminal law, the case has a higher profile because of its broad challenge to the constitutionality of the federal law that criminalizes any form of fraud, if the misconduct deprived another of "the intangible

The issues the court has agreed to hear are these: whether the federal “honest services” statute, under which Enron’s Jeff Skilling was prosecuted and convicted, is unconstitutionally vague, and whether the trial judge’s decision not to move Skilling’s trial out of Houston violated Skilling’s due process rights.

Skilling’s appeal requests a new trial, to be held outside of Houston.

For now, we suggest taking a look at two “walkup” pieces on the hearing. The first, Lyle Denniston’s at Scotusblog, gives a wonderful overview of the case and provides good context on why the case is attracting attention from such a wide swath of the white-collar community. Writes Denniston:

But, among those who specialize in criminal law, the case has a higher profile because of its broad challenge to the constitutionality of the federal law that criminalizes any form of fraud, if the misconduct deprived another of "the intangible right of honest services." That law, enacted by Congress 22 years ago to overturn a Supreme Court decision (McNally v. U.S., 1987), is a favorite tool of federal prosecutors, especially in public and private corruption cases. Its undefined language has led to countless efforts by federal judges to give it some particular meaning in order to save its constitutionality. Skilling's appeal assailed that effort, arguing that the resulting array of lower-court rulings "is a hodgepodge of oft-conflicting holdings, statements, and dicta" that "only the most discriminating lawyer or judge" could understand.

The other piece we recommend comes courtesy of Tony Mauro at the National Law Journal and focuses largely on the lawyer who’ll be handling the argument for Skilling on Monday: O’Melveny & Myers’s Sri Srinivasan. (Representing the United States will be Deputy Solicitor General Michael R. Dreeben.)

Srinivasan, reports Mauro, has already had a good week. He turned 43 this week, and got word on Tuesday that he had won a 9-0 victory in the Hertz Corp. v. Friend case, which established new standards concerning corporations and jurisdiction.

Mauro writes that when the court granted cert last October, Skilling’s go-to lawyer, O’Melveny’s Dan Petrocelli thought he’d do it. But Petrocelli was also tied up on another trial and O’Melveny partner and Mad Men fan Walter Dellinger decided to give it to Srinivasan. Mauro also reports that according to Petrocelli, Skilling, currently incarcerated in Colorado, is also “extremely pleased” with the choice of Srinivasan.

Srinivasan (Stanford, Stanford MBA, Stanford JD), reports Mauro, grew up in Lawrence, Kan., where he was an all-state point guard at Lawrence High School and a teammate of Danny Manning. He clerked for Fourth Circuit Judge Harvie Wilkinson III and Supreme Court Justice Sandra Day O’Connor, and later worked as a a Bristow Fellow at the Solicitor General’s office under Dellinger.

Full post as published by Law Blog - WSJ.com on February 26, 2010 (boomark / email).