Academic

We remember last year's Supreme Court term, which gave us Skilling v. U.S., where the court said that the federal crime of theft of honest services was being applied too broadly and was not supposed to reach to such defendants as Conrad Black and Jeffrey Skilling.  Black had two of his four counts thrown out last week.  Yesterday, hearings were held in the Fifth Circuit as to what to do with the rest of Skilling's case.  Tom Kirkendall has the news on the ground in Houston here.  The recording of the hearing is available here.

Remember that the the opinion in Skilling ended thus:  "[w]hether 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 ont he conspiracy count and, like dominoes, must fall if it falls.  The District Court. . .found this argument dubious. . .but the Fifth Circuit had no occasion to rule on it.  The court may do so on remand."

In the Houston Chronicle, Peter Henning lays out the arguments.  In a nutshell, Skilling is arguing that the conspiracy count, with honest services as the object of the conspiracy, must be thrown out.  If the conspiracy is thrown out, then the securities fraud counts, which were tainted by the conspiracy finding, must be retried.  This is the final showdown for the Enron Task Force.  Whether the prosecutors will be able to hang on to any Enron victory here is questionable.

I'm listening to the hearing now.

UPDATE:  I'd love to hear others' takes on the hearing.  I am not an appellate lawyer, but it seems unlikely that all counts will be thrown out.  Dan Petrocelli, arguing for Skilling, was interrupted often and questioned pointedly.  On the other hand, Doug Wilson, an assistant U.S. Attorney on the Task Force, was given a lot of room to methodically go through each count in factual detail and make the argument that these counts and the evidence they were based on were separate from and not tainted by the honest services count.  The court did call him for saying the honest services count was "incidental," but for the most part they just let him go.  He eventually ended his own time because there were no more questions.  The panel (Smith, Prado & Ludlum) asked each side if remand wouldn't be better to decide whether these counts were too interrelated, but neither side seemed to want that.  I'm wondering if that was a good strategy on Petrocelli's part or not.  Stay tuned.