Earlier this week, the Supreme Court heard oral arguments concerning the disgraced Enron executive Jeff Skilling. Skilling's appeal -- based on flaws in the jury-selection process and the potentially unconstitutional vagueness of the "honest services" law under which he was convicted -- seems to have a very high probability of succeeding.
I have to admit, my first impulse is to see something of a double standard in the relative solicitude of the Court's conservatives to Skilling's claims. Compare, for example, their concern with the jury selection process here with their utter indifference to the rampant racial discrimination in jury selection that is much more likely to affect poor people.
But even if one would prefer the civil libertarianism the Court seems poised to show in Skilling's case to be applied more broadly, it must also be said that both of the arguments made on Skilling's behalf are powerful. Several justices noted that, given the obvious notoriety and unpopularity of the defendant, the jury-selection process seemed quite cursory. There is is also a strong case to be made that the "honest services" statute is too vague to pass constitutional muster. Attempts by lower courts to define the very broadly worded statute have unsurprisingly been a mess, and the kind of nearly limitless prosecutorial discretion such laws permit are one of the primary banes of the American legal system. The only question seems to be whether the Court will attempt to offer a more workable definition of its own or simply throw out the law and tell Congress to start over.
Skilling is obviously not a sympathetic defendant. But like any defendant, no matter how unpopular, Skilling should only be thrown in jail after receiving a fair trial based on a law that establishes with some measure of clarity what kind of behavior is illegal and what isn't. On both counts, Skilling's conviction is pretty shaky. So I wouldn't have a problem if his conviction is overturned, although we should remember those who aren't afforded due process and who don't have the resources to get a fair hearing from the appellate courts.
--Scott Lemieux
