Friday, December 21, 2007
In case you need a nice 161-page brief to get you through those colds nights this holiday season, below is Jeffrey Skilling's reply brief challenging his convictions in the Enron prosecution. This is the shortest brief filed to this point, less than the 200-page tomes filed by both sides in their initial submissions -- but that's not saying much, is it. As is often the case when one side gets the final word, this brief takes the gloves off and aggressively attacks the prosecutors on a range of issues. As I've said before, the key issue in Skilling's appeal is how far the honest services issue will spread from the conspiracy count to other counts, based on the Fifth Circuit's decision in United States v. Brown limiting the use of that theory in business fraud cases. Needless to say, there is a lot of detail in those 161 pages, including challenges to the ostrich instruction, the government's evidence on various counts, and the venue issue.
Under the Fifth Circuit's rules, the usual amount of time alloted to each side for oral argument is twenty minutes per side, which hardly allows for a discussion of two issues, much less the myriad of points raised by Skilling. After the oral argument, an early tip-off about whether the Fifth Circuit is leaning toward reversing the convictions will be whether it grants Skilling bail pending the final disposition of the case. In the Brown case, shortly after oral argument the court granted bail to the defendants and then issued its opinion reversing the convictions. Skilling's brief alludes to its pending request for bail, and his lead appellate lawyer, Walter Dellinger, is sure to renew it after the oral argument. (ph)