March 1, 2010
Commentary on Skilling Oral Argument
I'll pass on the jury prejudice issue and leave it to crimprof to handle this one. But the honest services exchange was fascinating. You have several justices asking where to find this pre-McNally law. (see here). Do you need lawyers, do you have to carry around treatises - but then Justice Alito hits the homerun. He asks the important question of whether we would find this scenario in the pre-McNally cases. Mr. Dreeben says "not to my knowledge." A "logical extension" is what he offers. I call that - stretching.
Addendum -See Lyle Denniston, Scotus Blog here ; Tom Kirkendall, Houston Clearthinkers here; Mary Flood, Houston Chronicle, Justices worried about fair trial for Skilling; Robert Barnes, Wash Post, Skilling case latest to test 'honest services'
Second Addendum - The more I keep reading, the more I keep thinking about the Court's words in the Carpenter case, where they found the "right to intangible property" covered under the mail fraud statute, but noted that the Wall Street Journal "was defrauded of much more than its contractual right to his honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute..." Clearly this was pre-1346, but it is telling.
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