Skilling has been serving a 24-month sentence on charges of conspiracy, securities fraud, insider trading and lying to auditors. University of Houston Law Professor Adam Gershowitz says Skilling is challenging the use of the so-called “honest services” prosecutions.
“The jury is told, you know, ‘you can find the defendant guilty under a number of different theories’—one of which was this honest services theory. To be criminally responsible under that instruction, whether he had to have personally gained from the misconduct at Enron, and his position all along has been ‘I’ve never gained, personally, anything. In fact I lost a bunch of money when the company went down.’ And so if that instruction requires personal gain then the instruction could be flawed and potentially the jury could have convicted him on an improper instruction.”
A New Orleans federal appeals court affirmed Skilling’s conviction in January, but said his prison sentence was incorrect and needed to be recalculated. As for Skilling…
“Criminal defendants who’ve been convicted but are waiting for their appeal to be resolved always ask for bail pending appeal. Now that he’s got Supreme Court review and now that it’s quite possible the court could reverse this case, and if they side with him on this honest services question or on the pre-trial publicity question, what’s going to happen is the Supreme Court is going to vacate his conviction, or overturn it, and basically send it back for a new trial. And we would expect him to be free, pending the new trial, would be the expectation.”
Skilling says he didn’t get a fair trial in Houston because residents were angry and biased after the collapse of Enron. The Supreme Court may not argue the case until January or February, which could lead to a May or June decision.
Ed Mayberry, KUHF Houston Public Radio News.