When the  Supreme Court held that “honest services fraud” wasn’t some amorphous sinkhole where prosecutors with no business acumen could pound “common sense” arguments to jurors with no business acumen about how honest corporate executives should make complex decisions with wildly competing influences and interests at stake, but instead just plain vanilla bribes and kickbacks, it was a great day for rationality.

As it turned out, it wasn’t nearly as good a day for Enron’s Jeffrey Skilling.  

Doug Berman calls it a “Pyrrhic victory,”  Ellen Podger questions whether appellate courts should engage in post hoc verdict rationalization.   Tom Kirkendall says it’s not over yet.   Bill Otis says the fat lady sang, and her pitch was perfect.

On remand, the Fifth Circuit did the unthinkable just about what one would expect: they  affirmed Skilling’s conspiracy conviction despite the Supreme Court’s ruling under harmless error.  Of the many curious asides, this renders the ruling by the Supreme Court rather immodest, deciding an issue that was of no consequence to the case before it.  They don’t like to do that, limiting their efforts to question that demand answers, whether they actually answer them or not.

The Circuit’s ruling came down to a rather nifty switcheroo between standards of review and the parsing of the facts of the case, as only one can do by selectively cherry-picking that which supports a position and then squinting really hard so that the big mess looks wonderfully neat, clean and obvious.  To their credit, this is what appellate courts do best, turning confusion into clarity by ignoring everything that doesn’t conform.

With the caveat that the decision applies only to the conspiracy count, and that Skilling remains convicted of a bunch of substantive counts that are more than sufficient to remind us that he’s not quite an innocent fellow, the government argued at trial that guilt of the conspiracy was predicated upon a mashup of nefarious intent and conduct, part of which was that very honest services fraud that the Supremes rejected. 

The Circuit now concludes that it played a trivial role in the government’s argument, despite its  prior decision that suggested it was a critical component of the conspiracy conviction, and in its absence, the conviction must fall.  But that was then.

The trick was the 5th Circuit’s reliance on a case called Hedgpeth v. Pulido, which provided that a general verdict, one that convicted for a crime based on a mix of theories because the judge charged the jury that they could convict on a constitutionally infirm basis, was not a “structural error” but a trial error, and therefore subject to harmless error analysis.  This is where it gets interesting.  From footnote 1:

Before Pulido, we often applied an “impossible to tell” harmless-error standard to alternative-theory errors. See United States v. Howard, 517 F.3d 731, 736 (5th Cir. 2009) (cataloguing cases). This standard had its origins in Yates v. United States, 354 U.S. 298 (1957), which states that a general verdict should be set aside when it “is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id. at 312 (emphasis added). The impossible-to-tell standard is more stringent than the Neder standard; it is closer to the “absolute certainty” standard that the Supreme Court invalidated in Pulido. See Pulido, 129 S. Ct. at 533 (holding that the absolute-certainty standard is similar to “a finding that no violation had occurred at all, rather than that any error was harmless”). Because the impossible-to-tell standard is inconsistent with harmless-error review, we hereby abandon it.

It went from a reasonably close facsimile of reality, that the court couldn’t possibly know what evidence, what proof, what wrong, formed the basis for the jury’s conviction on a general verdict crime based on multiple theories, to the beloved legal fiction, harmless error.  The former acknowledged that appellate judges lack the powers of Karmac to read the minds of jurors, while the latter acknowledged that the basis upon which a jury reached its verdict doesn’t actually mean squat.  The appellate court will simply superimpose its view of how guilty the defendant is, then pretend that it’s the same thing as the jury’s.

The rest of the decision is merely the 5th Circuit’s characterization of the evidence and argument at trial in such a way as to conclude, as of course they did, that the evidence of Skilling’s guilt was overwhelming and untainted by the constitutionally infirm honest services fraud, a question of such magnitude that it required the attention of the Supremes.  It has to be correct because the court said so.

There is perhaps no theme more fundamental to the viability of the legal system than respect.  As my pal  Mike Cernovich notes on a completely different subject:

When Chief Justice John Marshall of the United States Supreme Court issued an opinion Supreme Alpha Male Andrew Jackson didn’t like, Jackson replied, “John Marshall has made his decision, now let him enforce it!” Jackson controlled the armies and federal police. What would the Supreme Court do – issue him a contempt citation?

Courts have no armies to enforce their will.  Its authority derives from society’s acceptance of the legitimacy of its decisions, the validity of its reasoning.  This decision has not been well received, despite the nearly universal agreement that Jeffrey Skilling isn’t a nice guy, and did vast harm to many.  Tossing reason into the vast sinkhole of harmless error, particularly after the Supreme Court determined the issue of sufficient magnitude to do some big time revisions to Congress’ make-crime handiwork does not instill confidence.  The decision is a pig, and no amount of lipstick makes the 5th Circuit’s effort look beautiful.

As for Skilling, my money is on Bill Otis, that he gets resentenced to pretty much the same sentence as already imposed (24 years) and the various applications for rehearing and cert will quietly fade into oblivion.  After all, it was just harmless error.