The National Association of Criminal Defense Lawyers has requested permission from the Fifth Circuit Court of Appeals to be allowed to file a friend of the court brief (you can download a copy here) in the appeal of former Enron executive Jeff Skilling.
The NACDL brief is excellent and focuses on the controversial decision of U.S. District Judge Sim Lake to grant the Enron Task Force’s request for a “deliberate ignorance” jury instruction against Skilling. Judge Lake’s allowed that instruction despite the fact that the prosecution didn’t allege that Skilling was deliberately ignorant of anything until just before the end of the evidentiary phase of the trial. Moreover, Skilling defended the case on the basis that he was a highly-involved executive of a company where there was no evidence of widespread criminal wrongdoing. Skilling never claimed that he even attempted to turn a blind eye toward alleged wrongdoing.
The NACDL’s brief comes out of the box smoking:

This case highlights a recurring problem in federal criminal cases: the indiscriminate use of the deliberate ignorance instruction. As we describe below, the deliberate ignorance doctrine has grave flaws that raise serious constitutional concerns. Left uncorrected, these defects will undermine the mens rea requirements that distinguish criminal and civil liability and perpetuate the status of deliberate ignorance as the new “darling” ofthe prosecutor’s nursery.
To mitigate the constitutional concerns with the deliberate ignorance instruction, the Court should restrict the instruction to narrow, clearly defined circumstances consistent with its purposes–circumstances that plainly do not exist here. At the first opportunity to consider the instruction en banc, the Court should eliminate it entirely, leaving to Congress the decision whether, and in what circumstances, deliberate ignorance is sufficiently culpable to warrant criminal sanction.

The NACDL notes that the indiscriminate use of the instruction is particularly troubling in corporate fraud cases, where jurors are already predisposed to believe that the defendant has done something wrong:

That danger is particularly great in the context of a fraud charged against an executive of a large corporation. Potential jurors, like the public generally, may hold the view that such executives should be aware of fraud in the organizations they lead, even if they are not. In such cases, therefore, the deliberate ignorance instruction may encourage jurors to indulge their own notions of culpability, in disregard of statutes and instructions requiring that the defendant act “knowingly.” The post-verdict remarks of the jurors in this case suggest that some of them may have blurred the critical line between knowledge and intent on one hand and recklessness or negligence on the other. . . . The deliberate ignorance instruction may well have encouraged that conflation of knowledge with less culpable mental states.
In the context of alleged corporate fraud, the deliberate ignorance instruction also raises the specter of the improper imposition of criminal liability based on the civil doctrine of respondeat superior. Jurors may well view the deliberate ignorance instruction as an appropriate imposition of supervisory responsibility (moral or otherwise), particularly when, as here, they may view the consequences of the alleged fraud to the corporation and its investors as severe and irremediable. [. . .]
If the Court affirms Skilling’s conviction on this record, district courts and prosecutors will rightly view the ruling as the final abandonment of any limit on the use of the deliberate ignorance instruction. Deliberate ignorance will have become the default basis for “knowledge” in corporate criminal prosecutions. In our view, this is the wrong message for the Court to send, at a time when the deliberate ignorance doctrine faces withering criticism and is ripe for reconsideration. The Court should find that the evidence did not warrant a deliberate ignorance instruction, reject any contention that the error was harmless beyond a reasonable doubt,8 and–in accordance with Ojebode and cases from other Circuits–reverse Skilling’s conviction.

And for good measure, the NACDL brief concludes by taking dead aim at Judge Lake’s equally questionable decisions not to transfer venue of the trial and the way in which he empaneled the jury:

In such extraordinary cases, the district court must take strong measures to guarantee the defendant’s Fifth and Sixth Amendment right to a fair and impartial jury. Here, as in the Oklahoma City case, the Constitution required the district court to transfer venue and then conduct a rigorous voir dire of prospective jurors from the new venue. Given the sheer loathing for Skilling and Lay that the collapse of Enron engendered in Houston, only with both of those protections–change of venue and thorough voir dire–could there be any confidence that the defendants would receive the trial to which the Constitution entitled them.
Remarkably, the district court provided neither protection. Faced with overwhelming evidence that Houston was suffused with hostility toward the defendants, the court cursorily rejected Skilling’s motions to transfer venue. The court then declared that voir dire would last no more than a day. It insisted on conducting voir dire itself, with only the most perfunctory follow-up questioning by counsel. It ignored unmistakable indications of bias in the potential jurors’ questionnaires. It persistently asked leading questions of potential jurors-questions designed to mask, rather than expose, bias. Even when grounds to strike potential jurors for cause became apparent, the court often denied them. . . . And the court granted Skilling and Lay a meager two additional peremptory challenges (for a total of twelve combined challenges), and then denied repeated requests for additional peremptories as jury selection unfolded. [record citations deleted].
The district court’s conduct of jury selection–from the denial of the motions to transfer venue without a hearing to the stunningly brief and superficial voir dire to the rulings on challenges for cause to the denial of additional peremptory challenges–represents a shocking triumph of efficiency over fairness. Under these circumstances, the court’s decisions should not be viewed in isolation and examined ruling-by-ruling under the deferential abuse of discretion standard. Such an atomized analysis would ignore the crushing unfairness of the court’s overall approach. Instead, this Court should review the record independently to determine whether the jury selection process violated Skilling’s fundamental right to a fair trial. See, e.g., United States v. Williams, 523 F.2d 1203,1208-09 (5th Cir. 1975) (constitutional claim of community prejudice requires independent review).
Such an independent review mandates reversal of Skilling’s conviction. If the bedrock constitutional right to “indifferent” jurors means anything, it means that Skilling should not have been tried in Houston before jurors selected in less than a day with only cursory examination, a number of whom had unequivocally expressed harshly negative opinions of the defendants on their questionnaires.

Based on the quality of the NACDL brief and the Skilling Appellant’s brief, the Department of Justice has its hands full in preparing its appellee’s brief, which is currently scheduled to be filed with the Fifth Circuit around sometime around mid-November.