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April 7, 2011

The Fifth Circuit punts on the Skilling case again

skilling 040711The Fifth Circuit Court of Appeals has not exactly distinguished itself in regard to the appeals emanating from Enron criminal matters.

First, there was the appellate court's affirmation of the U.S. District Court's ludicrous conviction of Arthur Andersen. That gem was subsequently overturned by a unanimous U.S. Supreme Court.

Then, a Fifth Circuit panel affirmed the District Court's brutal conviction of former Enron CEO Jeff Skilling. That pearl of judicial wisdom was disassembled by a largely unified the Supreme Court last year.

As if on cue, a Fifth Circuit panel has predictably produced another clunker, this time affirming Skilling's convictions on conspiracy and securities fraud counts because the erroneous reliance of the prosecution on Skilling's honest services wire fraud amounted to harmless error.

In short, the Fifth Circuit rationalizes that the prosecution really didn't rely all that much on all that honest services stuff in convicting Skilling, so his convictions on the other charges should stand.

Yeah, right. The prosecution didn't rely on the honest services counts all that much? Poppycock. For example, remember the absurd amount of time that the prosecution spent during trial on Skilling's alleged honest services violations in regard to Photofete?

What is most striking about the Fifth Circuit's decision is its utter vacuity. For example, the decision contends that there was "overwhelming evidence" that Skilling committed securities fraud by engaging in fraudulent accounting in regard to several Enron units. But the decision fails to cite any of the supposedly "overwhelming evidence" and doesn't even address the rather important point that the prosecution did not accuse Skilling of falsifying any of Enron's accounting. In fact, the prosecution didn't even put on any expert evidence that Enron's accounting for the allegedly misleading disclosures was wrong, much less false. This tortured logic took this Fifth Circuit panel six months to generate?

Oh well, this matter is far from over. Not only is the case going back to the District Court for re-sentencing, but now Skilling finally gets his opportunity for the first time to seek a new trial on the egregious prosecutorial misconduct (see also here) that was uncovered after the conclusion of the first trial. And you can bet that the Fifth Circuit panel's most recent rationalization will eventually be the subject of another appeal to the Supreme Court.

Meanwhile, a man who was a primary component in creating enormous wealth for investors and thousands of jobs for communities continues to sit in a Colorado prison.

Sure seems to me as if we could use more of those in the business community these days.

Update: Ellen Podgor has her typically cogent analysis of the Fifth Circuit decision here. Fifth Circuit Skilling Decision 06-20885-CR1.wpd

Posted by Tom at April 7, 2011 12:01 AM |


It must be especially galling to Skilling's
supporters (most of whom are probably Republicans) to know that the judges who rendered this most recent decision were appointed by one or more communists/socialists.

The good news is that because of his business acumen and other skills, the good folks at Lloyds of London will continue to bear the not inconsiderable costs of his ongoing legal fight for truth, justice, and the American way.

Posted by: Bill McWilliams Author Profile Page at April 7, 2011 8:09 AM

Sad to read this but will retain hope that a new trial exposing the prosecutorial misconduct will result in a better judgment.

Posted by: SUSAN FORREST CASTLE Author Profile Page at April 7, 2011 1:34 PM

Wikipedia definition:
A kangaroo court or kangaroo trial is a colloquial term for a sham legal proceeding or court. The outcome of a trial by kangaroo court is essentially determined in advance, usually for the purpose of ensuring conviction, either by going through the motions of manipulated procedure or by allowing no defense at all.
I was there for his hearing and it was painful to watch. Right away it was obvious that they were not going to have the guts to stand up and do the right thing. One of the judges recommended several times that this be remanded to an even lower court.
Jeff Skilling was convicted under a mob mentality. Unfortunately no arm of the US judicial system wants to be the one to "blame" for releasing him. If only the public knew the truth and this wasnt such a political Hot Potato then perhaps judges on some level would do the right thing and throw this case out on its merits.

Posted by: CBS Author Profile Page at April 7, 2011 4:44 PM

Tom: We may differ on health care issues, but Jacquie I'm right with you on this. I do, however, wonder if will we ever hear something from your clients (Whalley and McMahon) on this--has the statute of limitations run out?

Bill: I know several liberals who know a sham when they see one.

Posted by: Rich Prezioso Author Profile Page at April 8, 2011 10:53 AM

Sorry about that--don't hit post until you proofread those edits...that should say "Jacquie and I are right with you"

Posted by: Rich Prezioso Author Profile Page at April 8, 2011 10:57 AM

Hi Rich. I've been told that there are actually some conservatives who know that white collar crimes
pose a greater threat and do more harm to society than the shoplifter who makes off with a $50 heist
at Sears.

Posted by: Bill McWilliams Author Profile Page at April 9, 2011 5:40 AM

Bill, I don't put much stock in labels such as liberal or conservative because they are often quite misleading. However, using your interpretation of the term "liberal," I know quite a few liberals who believe that it is more important to require that the government prove beyond a reasonable doubt that the alleged shoplifter and the alleged white collar criminal actually committed a criminal act than punishing them because of the threat or harm that they supposedly pose to society.

Posted by: Tom K. Author Profile Page at April 9, 2011 9:06 AM

TomK --

I don't recall defining "liberal", but we have a fundamental difference of opinion if you believe what you said about Skilling. IMO, Mr. Skilling
is exactly where he belongs, and if he didn't
have the benefits of someone else paying his legal bills, he probably wouldn't be looking forward to
having his sentence reduced, because, imo, he's too greedy to spend any of his own money (ill-gotten or not) to try and prove that black is white.

Maybe he'll get the opportunity to redeem his sullied reputation by becoming an adjunct professor of "how to succeed in business" --
as part of the Phoenix U. MBA program.

Posted by: Bill McWilliams Author Profile Page at April 9, 2011 9:46 AM

Bill, I'm not sure what you are talking about in terms of Skilling not paying for his own defense. The vast majority of his legal costs were paid by Skilling out of his personal resources. Most of the O&D policy that Enron had procured to pay such defense costs was used by outside Enron directors to settle class action claims against them. Skilling received relatively little of the proceeds of that policy for his defense.

Posted by: Tom K. Author Profile Page at April 9, 2011 4:10 PM

Bill can't be expected to know what he's talking about. Tom, please don't interrupt him it was just getting good!

Posted by: Kevin Author Profile Page at April 9, 2011 8:43 PM

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