Tuesday, November 2, 2010

Oral Argument Prognostication, um Not!

A terrific story at the Houston Chronicle website caught my interest because of its coverage of the Oral Argument over the "honest services" theory used to convict former Enron "smartest guy" Jeffrey Skilling was being assessed by the Fifth Circuit in light of the US  Supreme Court decision declaring this provision of the US criminal code unconstitutional. 

In essence, Skilling's counsel, Daniel Petrocelli, (former plaintiffs' counsel in the OJ Simpson "wrongful death" civil lawsuit--) argued that the heart of the criminal convictions of Skilling, was the "honest services" allegations thereby tainting the entire prosecution of the former Enron exec.  Skillings argues that all remaining convictions should be dismissed, obviously the government disagrees.  Reporter Tom Fowler's story was interesting because it perfectly captured the absurdity of predicting appellate court decisions based on questions asked by the panel judges:

"A three-judge appeals court panel grilled attorneys for former Enron CEO Jeff Skilling and the government on Monday, trying to decide whether to throw out or order new trials on any of Skilling's 19 convictions.  His defense lawyer, Daniel Petrocelli, argued the U.S. Supreme Court's decision that the government was wrong to use a particular legal theory in charging Skilling with conspiracy means that charge and the remaining 18 should be thrown out.

The government contends that a rational jury would have convicted even without the faulty theory that he deprived Enron of his 'honest services,' because evidence overwhelmingly supported Skilling's guilt.  But the hearing, in which each side had 30 minutes to provide oral arguments, was more about the judges' questions than the lawyers' answers.

Judge Edward Prado asked if it would make more sense for the federal district court where Skilling was tried in 2006 to decide the issues raised by the Supreme Court decision.  Determining if the 'honest services' theory tainted the other charges would involve digging into the voluminous details of the five-month trial, Prado said.  Petrocelli said nothing would prevent the appeals court from sending the issue to the trial judge, but that the question is one of law.

'The court isn't being asked to act as a 13th juror,' or guess what the original jury was thinking, Petrocelli said. Rather it needs to look at the court record and determine if a 'reasonable jury' could find Skilling not guilty based on the evidence.

When the panel posed the same question to Assistant U.S. Attorney Doug Wilson, who argued for the government, he said the 5th Circuit would eventually have to tackle the issues anyway because whatever the district court decided would be appealed.

In its ruling on the case, the Supreme Court said 'honest services' prosecutions must involve bribery or kickbacks, and Skilling wasn't accused of those offenses.

The high court left it to the 5th Circuit to determine whether the error was harmful enough to require dismissal or retrial of any of Skilling's convictions.  The burden of proof before the appeals court lies with the government, which argued the honest services element was just one of several offered to the jury.

Judges questioned Wilson when he said honest services played a minor role in the case, but Wilson countered that 'honest services'  was mentioned just once in government closing arguments and not at all during Skilling's closing arguments. 'Every transaction, every representation made to the public was meant to deceive the investing public by propping up the share price,' Wilson argued. The evidence against Skilling was overwhelming, Wilson said. The judges asked Wilson why the jury deliberated for five days if evidence was overwhelming.  'Five days is not very long for a five-month trial,' Wilson said, noting 'this was a very careful jury.'

More than a dozen Skilling supporters, including his wife, children and a brother, attended the hearing. FBI agents and other attorneys involved in the case also helped fill much of the courtroom. Skilling, serving a 24-year sentence in a federal prison near Denver, did not attend.

The panel gave no indication of when it will rule on the case. The 5th Circuit took six months after hearing arguments to make a decision on its first go-around with the Skilling appeal.

'There's a very lengthy record that we think is very favorable to us,' Petrocelli said after the hearing. 'We have no interest in a quick decision.'

Although courtroom observers often try to guess which way a court is leaning based on questions the judges ask lawyers, such handicapping seldom is successful.

'You've got a better chance of betting right on all the ponies at Aqueduct than you do of predicting how a panel of judges will go,' said Brian Wice, a Houston attorney who specializes in appellate issues. 'Judges sometimes use their questions to test the limits of a party's arguments or to tease out answers to questions others on the panel have about an issue [ . . . ] I've walked out of arguments where, based on the questions, I think I was beaten like a mule and I've won,' Wice said. 'And there are other times where I thought the questions meant I won, and I lost.'"
Just before the OurState Supreme Court decided I lacked the character and fitness to continue to practice law, I was admitted to a federal Circuit Court of Appeals where I defended OurTown manufacturer sued over a decision not to hire a female at one of their foundries.   The oral argument was terrific, largely because my opponent was rude, inept, and unprepared.  The panel threw me softballs and excoriated opposing counsel as I defended a grant of summary judgment and he sought an order overturning the veteran District Judge famous for her probity in the area of employment law.

At the conclusion of the Oral Argument, my opponent turned to me and said, "Well, I lost that one!" 

He was wrong.  When the opinion was finally published many months later the Circuit Court of Appeals held, 2-1 (with an angry dissent,) for the plaintiff/appellant.  No one, who heard this Oral Argument could have guessed the outcome.

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