Tuesday, December 27, 2011

New Cert Petition Filed in Skilling - Interesting Question

Jeffrey Skilling is trying for a second shot with the Supreme Court.  On November 28, 2011 he filed a cert petition with the Court (see here).  The questions presented are:

1. Whether Neder permits a court conducting a harmless-error analysis in the context of an "alternative theory" case to consider only the strength of the Government's case on the legally valid theory, without regard to whether the defendant contested that theory enough to create a factual dispute that rationally could have been resolved in the defendant's favor.

2. Whether a court conducting a harmless-error analysis in the context of an "alternative theory" case may categorically exclude the defendant's testimony in his own defense on the legally valid theory.

The government's response is due January 3, 2012.

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2011/12/new-cert-petition-filed-in-skilling.html

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Comments

Skilling I cites Hedgpeth for the proposition that the harmlessness of instructional error in an alternate theory context must be judged beyond a reasonable doubt, since jury unanimimity is a constitutional requirement. In that light, these QPs seem understated to me in merely referencing Neder.

Posted by: Peter G | Jan 5, 2012 7:39:44 PM

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