February 12, 2007
Re-reading the Fifth Circuit's Denial of Skilling's Bail Pending Appeal
Posted by Christine Hurt

From the "How Did I Miss This?" File:

In the Fifth Circuit's December 12, 2006 order denying Jeffrey Skilling bail:  "Our review has disclosed serious frailties in Skilling's conviction of conspiracy, securities fraud, and insider trading, difficulties brought by a decision of this court handed down after the jury's verdict, as well as less formidable questions regarding the giving of a jury instruction on deliberate ignorance." 

This assertion by the Fifth Circuit that some counts of Skilling's conviction would almost certainly be reversed did not seem familiar to me, and I try to stay informed.  I looked around to see if this sentence had been reported in the media.  Um, not really.  A WSJ article (no link) did quote the sentence, on page A12, in an article oddly titled, Court Faults Skilling Conviction But Orders Him to Report to Prison.  The Law Blog that day reported on the order in a post entitled "Well, That Was Fast" with the beginning paragraph that focuses on the fact that the court ordered Skilling to report to prison one day after Skilling filed the appeal.  No one seems to think it's interesting that the Fifth Circuit, in one day and without the trial record, goes out on a limb to say that there are "serious frailties" in the conviction.  The media reports focus on the fact that he was denied bail.

So, why was he denied bail?  Well, even if the Fifth Circuit thinks that the counts of conspiracy, securities fraud and insider trading are vulnerable on appeal, there are still five counts of false statements to auditors.  The time to be served on convictions standing after an appeal would have to be less than the duration of time between December 12, 2006 and the appeal.  So, the Fifth Circuit might be saying that much of the conviction may be reversed, but there could still be six months to a year to serve at the end of the day.  Well, that's a lot different than 24 years.  Remember that when the Fifth Circuit sua sponte released the Merrill Lynch bankers William Fuhs, Daniel Bayly and Robert Furst from prison pending appeal the bankers had already served one year and had been sentenced to 37- and 30-month sentences.

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