With two cases on its docket already addressing the federal law on "honest services" fraud, it's fair to wonder why the Supreme Court added a third, but that's what the justices did Tuesday morning, granting review of an appeal filed by one-time Enron CEO Jeffrey Skilling.
The Court will hear arguments in December on what is needed to prove such a fraud in a case involving former media mogul Conrad Black (Black v. United States) and another where the defendant is a state official accused of mail fraud (Weyhrauch v. United States.) Skilling even filed an amicus brief in the Black case, and Solicitor General Elena Kagan urged the Court to hold Skilling's appeal pending the outcome of Black. Skilling's case addresses a slightly different aspect of the law, but Kagan said the outcome of the Black case could define the scope of the law in ways that would affect Skilling's appeal.
One possible explanation is that Skilling raises another issue unrelated to the honest services law: whether the massive pretrial publicity and "community passion" in Houston surrounding Skilling's trial created a presumption of juror prejudice -- and whether that presumption requires that Skilling's conviction be reversed. The local passion aroused by the collapse of Enron "was as dramatic as any in U.S. criminal trial history," asserted Skilling's brief, authored by Daniel Petrocelli of O'Melveny & Myers in Los Angeles. Kagan's brief counters that the judge was able to find jurors who had either heard little about the case or said the publicity would not affect their judgment. The jury panel was not "fatally saturated with pretrial publicity," Kagan stated.
This article first appeared on The BLT: The Blog of Legal Times.