Justice Antonin Scalia: Newest poster boy for defense lawyers
Following up on its activist behavior in going out of its way to hear and decide on the Citizens United case, our radically conservative Supreme Court will hear arguments on Monday in the third of a series of cases involving the concept of “honest services” as it appears in fraud statutes. This action appears to echo what bmaz described when he said: “the Roberts court does seem to have a hard on for this issue” with regard to the Citizens United case.
Here is SCOTUSblog setting the stage for arguments:
For the third time this Term, the Supreme Court will examine the scope of the controversial 1988 law that makes it a crime to commit fraud that deprives someone, such as one’s company, of “the intangible right of honest services.” It does so in the leading criminal case growing out of the Enron business scandal. This time, however, the Court may confront the constitutionality of that law, since the new case involves a claim that the law is so broadly worded that no one can know what it outlaws, thus making it unconstitutionally vague.
Here is how Citizens for Responsibility and Ethics in Washington (CREW) frames the arguments in the set of three cases on “honest services”:
The National Association of Criminal Defense Lawyers, backing defendants in the new cases, says the “honest services” provision of U.S. fraud law is unconstitutionally vague and gives prosecutors unbridled discretion to enforce their own views of what’s illegal. On the other side, the watchdog group Citizens for Responsibility and Ethics in Washington deems the law an invaluable prosecutorial tool against corruption.
In a remarkable twist, Justice Antonin Scalia is aligned with the defense lawyers. Continuing from the CREW link:
Justice Antonin Scalia, who complained in February about the law’s indefinite terms, said it “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs.” He was the lone dissent as the court declined to hear a dispute over the law’s breadth last term. Since then, the other justices changed their minds and decided to enter the fray.
Okay, so the strange bedfellows aspect of Scalia suddenly siding with defense lawyers is resolved when we realize that the list of high profile cases where convictions have been won is taken right from the social list of his buddies who support our corporatist states of America. From CREW, again:
The anti-fraud law at the heart of three disputes before the Supreme Court has been used against such high-profile defendants as lobbyist Jack Abramoff, former Illinois governor George Ryan and his successor, Rod Blagojevich.
In addition, the other two cases heard on “honest services” this term include the convictions of Conrad Black and former Alaska legislator Bruce Weyhrauch.
Bringing the Skilling case to SCOTUS on “honest services” seems to me to be especially shaky, since SCOTUSblog reminds us that his conviction under the “honest services” provision applied to only one of the many counts on which he was convicted:
On May 25, 2006, after the four-month trial, Skilling was convicted of one count of conspiracy to commit securities fraud and wire fraud (the “honest services” charge is keyed to that count), 12 counts of securities fraud, five counts of making false statements to accountants, and one count of insider trading.
Further, Skilling’s challenge centers more on another aspect of his conviction than it does on the “honest services” issue:
Much of Skilling’s challenge deals with his claim that he could not possibly have gotten a fair trial in Houston amid what his lawyers call the “devastating impact” of the scandal on the entire city and region, and the resulting “vitriolic” and “blistering” publicity about the accused executives. His attorneys claimed in the petition that “the community passion” stirred up by the case “was as dramatic as any in U.S. criminal trial history.”
God help us if “too evil to convict” joins “too big to fail”. Fortunately, we have the counterexample of attempting to try KSM in New York City to put up against the Skilling conviction in Houston on that point.
At any rate, I don’t have sufficient legal training to evaluate whether the language of the “honest services” provision is indeed too vague for consistent application or if what we have here is another example of our very own SCOTUS engaging in behavior that robs the citizens of “honest services” being performed by Supreme Court justices.
Tags: Antonin Scalia, Citizens United, Enron, honest services, Jeff Skilling, Rod Blagojevich
