Tuesday, March 2, 2010
The transcript of yesterday's oral hearing in Jeff Skilling's appeal to the U.S. Supreme Court proves to be an interesting read. You will recall Skilling made two arguments: first, that the trial should have been moved from Houston because the degree of passion and prejudice in the community meant that the process of voir dire could not be relied upon to weed out biassed jurors; second, the federal "honest-services" statute is unconstitutionally vague.
As to the first, some of the Justices seem troubled that the district court spent only about 5 hours questioning potential jurors -- an average of 4-1/2 minutes per juror. In contrast, in the Martha Stewart case, there were six days of voir dire. However, some judges are equally troubled about undue interference with the discretion of the trial judge in managing the case.
On the second, this is not the first time this term the Justices have expressed their concern over the vagueness of the statute criminalizing defendant's breach of fiduciary duty to provide honest services. Just last month it heard Lord Conrad Black's appeal on this same issue. Skilling's attorney argued forcefully that the government's theory could convert almost any workplace lie into a federal felony. The government attorney argued that this would depend on whether the employee owed a fiduciary duty to his employer and that involved principles of agency law -- a line of argument that did not appear to win over any Justices. The Justices also did not appear to be persuaded by the government's argument that the scienter requirement saved the statute from an overly broad scope.
We'll await the Court's decision.