Saturday, December 22, 2007

Commentary on Skilling's Reply Brief

The Skilling Reply Brief is lengthy as noted here, although not as long as defense counsel would have liked. Their opening line in the Statement of Facts is that "[s]pace limitations preclude a full recitation of the Task Force's distortion of the trial record." (emphasis added)  The irony in the opening portion that details some of the alleged discrepancies including a chart showing some of the "task force's descriptions" along-side a listing of "actual evidence," is that it is followed by the first argument - an argument pertaining to "honest services" fraud. This entry into their first argument is a masterpiece in the art of skillful brief writing.  Some other thoughts:

  • The defense does not present a lay back approach to differences in the record.  They call the government on the carpet with forceful words that emphasize their view of inaccuracies in the government recitation of the facts.  As the appellate court decides the law, and the trial court the facts, this may not be as strong an argument as it reads. But it could become important in light of the legal issues being presented.
  • This case highlights the problems with the "honest services" doctrine. The dissent in Rybicki noted the different views held by jurisdictions on a host of points related to section 1346 of the fraud statutes. And with the Brown decision within the court's reach, the government needed to present clear arguments on why Skilling's case was different. Here again we see an interesting tone in the rhetoric by the defense.  For example, they state in the Reply Brief - "[t]his, to be sure, is nothing more than a call for a 'Jeff Skilling' exception to be grafted onto the wire fraud statute." 
  • Whichever way the court goes on the honest services issue, it will be an issue that is likely to repeat itself until the Supreme Court provides additional clarification.  The question will be whether this case will serve as the next McNally, a case that reigned in the mail fraud statute when the government used an intangible rights doctrine approach.  Or will it be more like what happened in Carpenter, where the Supreme Court expanded property to include intangible property.  Or will the Court sit back, since after all 1346 was enacted post- McNally by the legislature.   
  • The reply brief hits hard on the government response to the giving of the ostrich instruction.
  • The materiality and venue arguments get buried in the middle of the brief.  The reality here being that although they were key factors in the conviction, they may be the hardest to demonstrate as legal errors.
  • The chart on page 109 of the brief is very telling.  It provides a chart of some high profile cases and the length of the jury selection.  (e.g. Bernie Ebbers - 2 days, I "Scooter" Libby - 4 days, Martha Stewart - 6 days). Uniformity only seems to matter to the Sentencing Commission.
  • The "document dump" argument could be a sleeper, although the strong rhetoric at the end of this section is just that - strong rhetoric.
  • The brief ends with a request for bail pending appeal.  And although strong arguments are presented here, it doesn't seem likely that Skilling will be home for holidays.

See also co-blogger Peter Henning's points from this article by Mary Flood in the Houston Chronicle here and Professor Doug Berman of Sentencing Law & Policy Blog here.


Addendum - Check out Tom Kirkendall's Houston ClearThinker's here.

Second Addendum - The comment above on the materiality and venue issues should not be interpreted to seem like these aren't important issues.  They are extremely important ones that the appellate court will need to examine carefully.

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