October 19, 2009
Skilling Case to go to the U.S. Supreme Court -- Does it Prove the Enron Task Force was a Failure or that Pricey Defense Teams Have the Advantage?
Posted by Christine Hurt

Last week, the Supreme Court granted certiorari to hear the U.S. v. Skilling appeal on two grounds.  First, whether the denial of a motion for a change of venue was proper, given the amount of pre-trial publicity in Houston and the intense public outcry of Houstonians that focused on Enron at the time.  I will leave the civil procedure folks to sort that one out, but it seems if ever there was a case that needed a change in venue, this case seemed to fit the bill.  (If you're going to have a rule that allows defendants to get a change in venue. . . . .)

The Court also granted cert. on another issue in the case -- the use of a violation of the "honest services" statute as a count in the indictment.  This statute, and the misuses of the statute, has taken on a life of its own and seems to be a part of three cases in front of the Supreme Court right now, including the Conrad Black appeal.  Again, I'll leave to the appellate pros on why the Court took another "honest services" case when it seems to have several on its plate right now.

The Houston Chronicle, which may feel some need to defend itself as the cheerleader of the Enron Task Force, responds to this turn of events by asking whether this latest (and third) Supreme Court case examining a prosecution brought by the Task Force reflects more on the Task Force or on criminal defense abilities.  Specifically, the article asks experts whether the Task Force has an awful appeal record because it overreached or because the Enron defendants had fancy schmancy attorneys that have some unfair advantage because they are so clever.  I understand the arguments of these experts about the "legal defense machines," but it's sort of interesting that none of these resources helped at trial, but they do seem to have won on appeal.  Yes, good trial lawyers can preserve error, but can't they also win trials?  I'm just not sure that if these were cases that the prosecution should have won and kept on appeal, but for the expensive defense attorneys, that they would only lose on appeal, not at trial.

My favorite quote is from Houstonian Philip Hilder, "who represented Enron witnesses (i.e., unindicted persons who agreed to testify) and a former prosecutor":

This [the fact that 3 Enron-related cases have been appealed to the Supreme Court] underscores the difficulty of prosecuting a white-collar case where the defendant is well-funded, putting them on par with the government

Yes, the system falls apart when the defendant's resources are "on par" with the government's resources. Then justice will never prevail.

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