06/25/2010 05:26 pm ET | Updated May 25, 2011

Skilling v. United States : The Chicago Connection

"It's been an eight year nightmare. I've buried both my parents. It broke their hearts," is what WGN-TV's meteorologist Tom Skilling said about what had happened to his brother Jeffrey Skilling, the one-time CEO of Enron, the nation's seventh highest revenue grossing company before it crashed into bankruptcy in 2001. Jeffrey Skilling has served 4 years of a 24 year prison term. I ran into his older brother Tom Skilling in the corridors of the US Supreme Court on March 1. We were both there for oral arguments in Skilling v. US.

Yesterday, Justice Ruth Bader Ginsburg, writing for a unanimous court, gave what's left of the family some relief, finding that the jury improperly convicted Skilling of conspiracy to commit "honest-services" wire fraud. The jury had already found him "not guilty" of 9 insider trading charges.

In its ruling, the Supreme Court said that the federal statute, proscribing fraudulent deprivations of "the intangible right of honest services," covers only bribery and kickback schemes and that "Skilling's alleged misconduct entailed no bribe or kickback."

In narrowly construing this federal statute, the Court said it was establishing a uniform national standard in defining "honest services with clarity." The Court emphasized that the honest services statute should reach "only seriously culpable conduct."

The Court cautioned that it is "an open question" whether "potential reversal on the conspiracy count touches any of Skilling's other convictions" even though his attorneys contend that all of his convictions hinge on the conspiracy to commit honest-services fraud and "like dominoes, must fall if it falls."

Remanding the case back to the Fifth Circuit Court of Appeals for proceedings consistent with its opinion, the Supreme Court also addressed Skilling's motion for bail pending appeal. Previously, "the Fifth Circuit had no occasion to rule on it. That court may do so on remand." This is an interesting point and bears watching. Skilling could be out on bail pending the resolution of his legal woes.

In contrast, former Illinois Governor Rod Blagojevich, whose trial on corruption charges began June 3 in federal court in Chicago, may not be so lucky. Although half of the two dozen charges against him do involve the federal honest-services statute, simply narrowing the statute and not striking it as unconstitutionally vague may not offer Blagojevich much relief, if he is found to have engaged in bribery and /or kickbacks. Of course, it all depends on what evidence the judge allows to be presented to the jury by the prosecution and defense teams.

Judge James Zagel should reconsider and give the Blagojevich defense team time to digest the 114 pages handed down by the Supreme Court on June 24. He has denied their request so far. By flatly denying the defense request, it gives them a ground for appeal if Blagojevich is found guilty. It has been predicted that this will be a four month trial anyway; what's the rush, Judge Zagel?

Lonna Saunders is a Chicago attorney/writer/broadcaster. She served as Chair of the Law & Media Committee of the American Bar Association for 2 terms and was on the Editorial Board of the "Journal of Criminal Law & Criminology" at Northwestern University School of Law in Chicago.

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