Jeffrey Skilling - Supreme Court Review

Supreme Court Review

On October 13, 2009 the Supreme Court of the United States agreed to hear two questions presented by Skilling's appeal. The Court subsequently scheduled and heard argument March 1, 2010.

The first challenge by Skilling's defense was whether or not the federal "honest services" fraud statute (title 18 of the United States Code, section 1346) required the government to prove that Skilling's conduct was intended to achieve "private gain" (instead of being intended to advance his employer's interests); and, if not, if this statute is unconstitutionally vague. The Court heard two other cases about the same statute on December 8, several months before it heard Skilling's appeal: Black v. United States and Weyhrauch v. United States.

The second issue—- "in-house judging"—- was whether or not—- when a presumption of jury prejudice arises because of the widespread, community effect of the defendant's alleged conduct, plus, widespread, inflammatory pretrial publicity—- the government may rebut that presumption; and, if so, if the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

In the arguments on March 1, the issue of jury selection received the most attention. Justices Stephen Breyer and Sonia Sotomayor seemed especially bothered by the questioning of one potential juror who reported that she herself lost $50,000 to $60,000 in the Enron debacle. ... "How can we be satisfied that a fair and impartial jury was picked when the judge doesn't follow up when the juror said, 'I'm a victim of this crime,'" Sotomayor asked. The government maintained that the judge and the selection process were appropriate. Sri Srinivasan, a partner at O'Melveny & Myers, was Skilling's Washington defense attorney and Justice Department lawyer Michael Dreeben argued for the government.

On June 24, 2010, in an opinion by Justice Ruth Bader Ginsburg, the Supreme Court unanimously nullified Skilling's honest services fraud conviction, finding that "Skilling's misconduct entailed no bribe or kickback." The Court remanded the Skilling case back to the lower court for further proceedings to decide which charges must now be dismissed as the result of the invalidation of the honest services statute.

In April, 2011 a three judge 5th Circuit Court panel ruled that since the jury was presented with "overwhelming evidence" that Skilling conspired to commit conspiracy fraud, the verdict would have been the same even if the honest services theory had never been presented, and Skilling's conviction was confirmed. The case in the 5th Circuit is United States of America v. Jeffrey K. Skilling, 06-20885. Skilling appealed this new decision to the Supreme Court, but was denied certiorari.