Thursday, June 24, 2010

A Bad Day for the Prosecution

Two big criminal justice-related decisions announced today. The MSM seems to be depicting the Skilling decision (he of former Enron fame) as a win for the defendant and as a loss for white-collar crime prosecutions.

The U.S. Supreme Court dealt a blow Thursday to the federal government's high-profile convictions of Enron's Jeffrey Skilling and former media mogul Conrad Black, sending the cases back to lower courts for possible reversal on at least some charges.

The high court, in opinions by Justice Ruth Bader Ginsburg, found fault with a federal law that gives prosecutors the authority to bring cases against executives who deprive companies of their honest services.

The rulings could have a significant impact on some white-collar crime prosecutions. The honest-services law has been a darling of government lawyers because it is broadly worded and gives them room to prosecute a wide range of conduct.

I never understood the "honest services" fraud charge until I read Gary Chafetz's take last year:

Honest-services fraud -- "a scheme or artifice to deprive another of the intangible right of honest services" -- is a term that no one seems able to define without using "honest-services" in its definition. Which a priori implies that because it cannot be defined, it is unconstitutionally vague.

Making matters murkier and more unreasonable, the law is divided into two categories: the second version involves private citizens who have allegedly failed to provide their honest services in their dealings with other citizens. For example, who has not failed to provide his or her honest services as a friend, lover, father, mother, husband, wife, brother, sister, co-worker, boss, or subordinate? Hence, private honest-services is a universal crime, of which every man, woman, and child is guilty. A dispute between a contractor and a homeowner -- ordinarily settled in civil court -- may be a federal felony, private honest-services fraud, punishable by five years in prison, a $250,000 fine, or both.
As he notes, there is no rhyme or reason to its application, which the court concluded (variably 7-2 and 6-3) was unconstitutional, and it gives too much power to prosecutors. Also, they did not throw out the conviction of Skilling, so I'm not sure how they are "siding" with him in the eyes of the media. It was a slap at prosecutors, but Skilling will remain in prison.

The case is Skilling v. U.S. (2010).

The other c.j. case involved the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996 and the curtailing of habeas rights on behalf of capital defendants. Incredibly, it was a win for the death row inmates and a defeat for "overworked" prosecutors.
This morning, the Court held in Magwood v. Patterson (No. 09-158), that when a criminal defendant succeeds in having his original sentence overturned, a later habeas petition challenging his new sentence should be treated as a first petition (not as a “second or successive” petition), even if it raises grounds that could have (but were not) made against the original sentence.
From the majority opinion by J. Thomas (and joined by the unusual lineup of Stevens, Scalia, Breyer and Sotomayor):
This is Magwood’s first application challenging that intervening judgment. The errors he alleges are new. It is obvious to us—and the State does not dispute—that his claim of ineffective assistance at resentencing turns upon new errors. But, according to the State, his fair-warning claim does not, because the state court made the same mistake before. We disagree. An error made a second time is still a new error. That is especially clear here, where the state court conducted a full resentencing and reviewed the aggravating evidence afresh.
From the dissent by J. Kennedy (joined by Roberts, Alito and Ginsburg):
The Court’s suggestion that “[i]t will not take a court long to dispose of such claims where the court has already analyzed the legal issues,” misses the point. This reassurance will be cold comfort to overworked state district attorneys, who will now have to waste time and resources writing briefs analyzing dozens of claims that should be barred by abuse-of-the-writ principles. It is difficult to motivate even the most dedicated professionals to do their best work, day after day, when they have to deal with the dispiriting task of responding to previously rejected or otherwise abusive claims. But that is exactly what the Court is mandating.
Snicker. I didn't realize our poor DA's were so "overworked" and that it was so difficult to "motivate" them to engage in the "dispiriting task" of writing pro-death penalty briefs in support of themselves. I suppose they could always get another job, or [gasp] do their job more effectively at trial (given that it's a death penalty case and all), but I digress.

As Doug Berman points out, the alliance on this death penalty case was certainly "fascinating." It's unusual to see the conservative block fracture along those lines (and even stranger to see Ginsburg in the speed-up-executions camp).

The case is Magwood v. Patterson (2010).

Incidentally, the court concludes its term on Monday the 28th. The biggest cj-related decision left is the McDonald case, regarding the 2nd amendment, gun-control and whether the Heller decision from two years ago applies to the states.

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