One of the many troubling aspects of the Enron Task Force’s prosecution of former Enron CEO Jeff Skilling is the “trial penalty” that Skilling faces in connection with his sentencing (which is next Monday, October 23rd).

The trial penalty is the additional time that Skililng faces in prison because he chose to assert his Constitutional right to defend himself against the government’s charges in comparison to similarly-situated defendants, such as former Enron CFO Andrew Fastow (six years) — who copped a plea under a cooperation agreement with the Task Force — or former Enron chief accountant Richard Causey (no more than seven years), whose deal with the Task Force does not include an obligation to cooperate in other cases.

Exhibiting the same professional integrity that Joseph Grundfest recently displayed in the sad case of Jamie Olis, University of Illinois law professor and criminal law expert Margareth Etienne has filed an amicus curie brief in connection with the October 23rd Skilling sentencing hearing. Professor Etienne bears down on the key issue (citations are omitted):

[A] plea discount must be differentiated from a trial penalty. A plea discount–or a limited reduction such as acceptance of responsibility that takes into account factors such as a guilty plea–have been deemed constitutional; but a trial penalty–a punishment for exercising Fifth and Sixth Amendment rights–would clearly be unconstitutional insofar as it would violate the “unconstitutional conditions” doctrine. The “unconstitutional conditions” doctrine simply states that the imposition of a penalty for exercising a constitutional right creates an unconstitutional condition. Imposing a sentence on Mr. Skilling that is several times that of the sentences faced by his co-defendants–when the only material distinction between their cases appears to be Mr. Skilling’s decision to go to trial–strongly suggests that Mr. Skilling is being penalized for exercising his constitutional rights. This is particularly true in a determinate sentencing (or guideline) regime where the potential benefits bestowed on co-defendants for acceptance of responsibility (and cooperation with the government, when applicable) are easily quantifiable.

Accordingly, the question for sentencing courts is whether there is a point at which a permissible plea discount becomes an impermissible and unconstitutional trial penalty. At the very least, when the disparity in sentences between similarly situated defendants can no longer be attributed to easing the government’s burden by entering a resource-saving guilty plea, such a disparity risks being an unconstitutional trial penalty. Such an unjustified disparity, when it violates norms of fundamental fairness and proportionality, may also rise to the level of a Fifth and Fourteenth Amendment violation.

Not only is the trial penalty a horrifying injustice for individuals such as Skilling, it is also a substantial factor in the great waste of the government’s dubious regulation of business-through-criminalization policy.

Former Enron CEO Jeff Skilling filed a motion for bail pending appeal earlier in the week (download a copy here; Carrie Johnson’s WaPo article on the motion is here) and, in so doing, previews the major issues that he will emphasize in his upcoming appeal of his conviction on conspiracy, securities fraud and insider trading charges: the “deliberate ignorance” jury instruction; the Task Force’s application of the “deprivation of honest services” theory upon which most of the conviction is based; failure to transfer the venue of the trial and related jury bias issues; and the Task Force’s prosecutorial misconduct, particularly in effectively precluding witnesses with exculpatory testimony for Skilling from testifying during the trial by threatening those witnesses with prosecution if they were to do so. The motion is compelling, and its introduction sums up Skilling’s position well:

Jeff Skilling should remain on bail pending appeal. He presents no flight risk, nor is he a threat to society; his appeal is not being pursued to delay; and his appeal will raise substantial issues of law that, if resolved in his favor, will likely result in the reversal of his convictions. See 18 U.S.C. ß 3143(b) (elements defendant must establish to obtain bail pending appeal); United States v. Clark, 917 F.2d 177, 179 (5th Cir. 1990) (same). Only the last of these elements should be in dispute, and Skilling satisfies them. His appeal challenges all the counts of conviction and presents enough of a ìclose,î or ìsubstantial,î question to warrant bail pending its resolution. United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir. 1985).
One of the strongest arguments Skilling will have on appeal is that a ìdeliberate ignoranceî instruction should not have been given in this case. Whether to give such an instruction always presents a ìclose question.î United States v. Tunick, No. S3 98 CR 1238 (SAS), 2001 U.S. Dist Lexis 2911, at *8 n.5 (S.D.N.Y. Mar. 22, 2001). The question was especially close here for at least four reasons:

ï Such instructions are disfavored, see United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992);
ï Skilling never asserted an ìostrichî defense, a usual prerequisite to issuing the instruction, see United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990);
ï Skilling never purposefully blinded himself to any allegedly criminal facts, another prerequisite, see United States v. Posada-Rios, 158 F.3d 832, 875 (5th Cir. 1998); and,
ï Finally, the Task Force all but conceded that the instruction should apply only to Lay, yet the Court refused to give an instruction informing the jury that the deliberate ignorance theory could apply only to one, and not to both, defendants, cf. 2001 Fifth Circuit Criminal Jury Instruction 1.37 (approving such clarification; citing United States v. Reissig, 186 F.3d 617 (5th Cir. 1999)).

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