The Supreme Court has agreed to listen to Jeff Skilling’s appeal.
The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges. The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive. This was one of four cases granted review, to be argued early next year. The Court, however, once again took no action on a significant new Guantanamo detainee case, Kiyemba v. Obama (08-1234).
Below we’ve embedded the original petition for cert.
Are you shocked by this? Don’t be.
Below the petition for cert we’ve embedded Justic Scalia’s dissenting opinion in the case of Sorich and Slattery vs. United States, in which he slammed honest services caselaw. Clearly Skilling has a friend on the Supreme Court who thinks the federal government has gone completely haywire with its criminalization of business dealings.
Here’s the relevant part (via Volokh):
[T]his Court has long recognised the”basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City of Columbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But “the notion of a common-law crime is utterly anathema today,” Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting).
. . .
It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the ex-pansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.
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