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June 24, 2010

Some blogosphere reactions to Skilling et al.

Based on a brief tour of the legal blogosphere, I found these posts of notes reacting to the Supreme Court's reconstruction of the honest services fraud statute in Skilling and companion cases fraud statute (basics here, full opinion in Skilling here). 

  • From Crime & Consequences here, "Honest Services Mostly Survives"

  • From The White Collar Crime Prof Blog here, "NACDL President Comments on Honest Services Trilogy"

  • From the WSJ Law Blog here, "What Does Future Hold For Honest Services Fraud?"

June 24, 2010 at 05:15 PM | Permalink

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It seems to me that Bill Otis (at Crime & Consequences) vastly overstates the win for the government. Prosecutors love these abstract honest services indictments: they can get a conviction, as long as they can make the defendant look vaguely sleazy. Now, they’ll actually have to show that a bribe or a kickback occurred (or was planned).

However, I don’t think Skilling is out of the woods. Even if the conspiracy count falls, I doubt that the Court of Appeals will buy the argument that all of the remaining counts were tainted.

Posted by: Marc Shepherd | Jun 24, 2010 5:46:13 PM

true but there should be some punishment for the govt's continual attempts to use laws passed AFTER a crime during the trial.

Posted by: rodsmith3510 | Jun 24, 2010 7:10:27 PM

Marc Shepherd --

"It seems to me that Bill Otis (at Crime & Consequences) vastly overstates the win for the government."

I don't think I said it was a win. I said the bite taken out of the statute still leaves it mostly intact, and that was more than one would have expected if you listened to the oral argument, as I did.

"Prosecutors love these abstract honest services indictments: they can get a conviction, as long as they can make the defendant look vaguely sleazy."

When a defendant, like Skilling, engages in months of mind-boggling greed and deceit, no one is "making" him "look vaguely sleazy." He was a big-time swindler and self-serving liar who got nailed, and justly so.

"Now, they’ll actually have to show that a bribe or a kickback occurred (or was planned)."

Blago, call your office. Which is about to get moved to federal prison, unless he's bribed the jury.

"However, I don’t think Skilling is out of the woods. Even if the conspiracy count falls, I doubt that the Court of Appeals will buy the argument that all of the remaining counts were tainted."

It's better than 50-50 that the instructional error will be found harmless, and even if not, I'll bet you a steak dinner in Manhattan that (1) all the rest of the convictions will stand, and (2) he'll get the same sentence he's got now.

Posted by: Bill Otis | Jun 24, 2010 7:44:22 PM

I would like to see Honest Service doctrine applied to the lawyer cult criminal. It is a potential weapon of mass lawyer destruction. All lawyer rent seeking and hyperproceduralism violates it.

Posted by: Supremacy Claus | Jun 24, 2010 10:08:06 PM

Bill, I’d love to join you for that steak dinner in Manhattan. You are a wise man, and an evening in your company would, I am sure, be time well spent.

Unfortunately, we largely agree about what will happen to Skilling, so I am not sure what is left to bet on. I agree that there is a chance (whether or not 50/50) that the error will be found harmless, and practically no chance that the remaining convictions will be tossed.

Posted by: Marc Shepherd | Jun 25, 2010 7:23:24 AM

Marc --

Oh phooey. I look in on your restaurant reviews every now and again, and I was sure I was headed for the best steak I've ever had.

My wife grew up in Manhattan and I just love the place. We still go up there occasionally and stay at a condo on E. 69th St.

Posted by: Bill Otis | Jun 25, 2010 7:45:23 AM

Bill, the steak’s on me, regardless of what happens to Skilling.

Posted by: Marc Shepherd | Jun 25, 2010 9:43:25 AM

The pretextual use of the law is failure to provide honest lawyer services.

The promotion of a left wing, rent seeking agenda is failure to provide honest lawyer services.

Any form of bias, of which there are 100+, is a failure to provide honest lawyer services.

Of course, all false convictions are a failure to provide honest lawyer services.

Posted by: Supremacy Claus | Jun 26, 2010 12:13:15 PM

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