The Skilling brief

Belatedly, here's Tom Kirkendall's full-bore analysis, together with a link to the filed brief. And here's a bare-bones taste – the brief's summary of the argument.

I. The government’s entire case against Skilling rested on the “honest services” theory of wire fraud this Court squarely rejected in U.S. v. Brown, 459 F.3d 509 (5th Cir. 2006). Through testimony, instructions, and argument, the Task Force explicitly linked its defective theory to each and every count on which Skilling was convicted. Because Brown error infected every count, Brown alone compels a complete reversal in this case.

II. The government’s case was also infected by legal errors in the rules the jury was instructed to apply in making its guilt determinations. The jury was inaccurately or insufficiently instructed on the rules governing mens rea, materiality, the so-called “side deals,” and Skilling’s reliance defense. Because of the inadequate and erroneous instructions, the jurors lacked the tools necessary to analyze the conflicting evidence and evaluate the government’s exceedingly thin factual case.

III. Whatever legal principles were properly applicable here, this case never should have been tried in Houston. The Task Force urged the trial court to deny a 60 change of venue, promising that careful voir dire would identify 12 impartial jurors among the more than four million people in Houston. That careful voir dire never happened. As a consequence, the jury seated was demonstrably prejudiced against Skilling. Community animus dominated Skilling’s trial and directed its outcome. Skilling is entitled to retrial in a new venue that does not perceive itself as a victim of Enron’s collapse.

IV. The Task Force unlawfully denied Skilling access to available evidence, threatened witnesses, and withheld critical exculpatory and impeachment evidence.

V. Finally, and only if it does not reverse all of Skilling’s counts of conviction, this Court should address errors in his sentence and order a new sentencing. Skilling’s 24-year sentence was unreasonable, inconsistent with the Guidelines, contrary to the federal sentencing statutes, and ultimately unconstitutional.

This should be interesting.

Comments

[M. Hodak]

I agree with everything TK said up to that last point. From what I know, the sentence may have been unreasonable, but it was well within the guidelines. The guidelines are unreasonable, and should be unconstitutional (has SCOTUS opined on that?).