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Wednesday Round-up

The grant of certiorari in Skilling v. United States yesterday is dominating news and blog headlines.

As the New York Times reports, former Enron CEO Jeffrey Skilling is challenging his conviction under the federal law banning “honest services fraud,” or an attempt to “deprive another of the intangible right of honest services.”  Skilling claims the law is unconstitutionally vague, unless it is interpreted to mean that the defendant intended to derive private gain at the expense of his employer.  The government has conceded that Skilling’s actions to inflate Enron profits did not advance his private interests.  Yet Bloomberg points out the government’s claim that, for Skilling, “a victory on the honest services issue would leave intact his convictions on other securities fraud and conspiracy counts.”

The Wall Street Journal and Washington Post also cover the cert. grant in Skilling, highlighting the former CEO’s second argument that the location of his trial in Houston should have been moved due to a biased jury pool.  The Journal quotes a Columbia Law professor, who notes that “[t]he area of venue is something the Supreme Court hasn’t touched for a long, long time.”  According to the Wall Street Journal Law Blog, forty-seven percent of those who responded to a questionnaire sent to potential jurors in Houston indicated that they, their family, or friends had some connection to Enron’s bankruptcy.

Skilling was the third case the Court has agreed to hear involving honest services fraud, as Nathan Koppel at the Wall Street Journal Law Blog notes:  the Court will also hear oral argument this Term in Black v. United States and Weyhrauch v. United States. This series of grants left Court observers speculating as to why the cases were not consolidated.  At the BLT, Tony Mauro suggests that the Court may focus on a second, unrelated issue in the case: whether the publicity Skilling’s trial received in Texas created a presumption of juror prejudice.  Douglas Berman takes a similar position at Sentencing Law and Policy, hoping that the Skilling ruling may prompt lawyers to consider the same conditions in the sentencing context.

Justice Scalia has already aired his views on the honest services fraud law, as reported in the story above by the Washington Post, and by SCOTUSblog’s own Lyle Denniston.  In an earlier dissent this year, he criticized the law as over-broad, writing that it “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

Tony Mauro at the National Law Journal describes yesterday’s oral arguments as a “bad lawyering” session, given that two of three cases, Padilla v. Kentucky and Smith v. Spisak, raise questions of inadequate counsel under the Sixth Amendment.

On Padilla, the New York Times reports that Jose Padilla, a noncitizen and forty-year resident of the United States, is challenging his deportation for pleading guilty to marijuana trafficking, based on the assurance of his lawyer that he would not be deported for such a plea.  The central question in the case is whether the lawyer’s failure to foresee “collateral consequences” renders his counsel constitutionally inadequate.  Several justices expressed doubts about how to draw the line with regard to the type of collateral consequences of which defendants should be warned, and some saw that warning as a judge’s role instead.  The Washington Post notes that Justices Ginsburg and Sotomayor seemed impressed by the severe consequences of deportation.

The Washington Post editorial page urges the Court to allow Padilla to challenge his guilty plea based on his ineffective assistance argument.  While lawyers need not be expected to give advice on all collateral consequences of a plea, the Post argues that at a minimum they should be familiar with the particularly dire consequences of deportation.

The third case argued on Tuesday received less coverage.  In South Carolina v. North Carolina, the Court heard oral arguments in a dispute between the two states over water rights on the Catawba River.  As McClatchy DC reports, the main issue before the Court yesterday was whether three non-state entities can participate in the case; both the federal government and South Carolina oppose such intervention.

The Wall Street Journal and Christian Science Monitor preview Alvarez v. Smith, to be argued this morning.  The case was brought by six Illinois residents whose property was seized for a criminal investigation in which they were not suspects.  State officials are urging the Court to reverse the Seventh Circuit’s decision that the property owners must be granted an “interim adversarial hearing” to contest the seizure.

In the National Law Journal, Marcia Coyle previews the second case to be argued at the Court today, Perdue v. Kenny A., and notes that the case is attracting support from public interest legal organizations across the political spectrum, all of whom hope that the Court will allow an attorney’s fee award to be increased based on outstanding attorney performance or results.

The contentious debate over Salazar v. Buono, argued last week, continues with a new post by Chris Lund at Prawfs Blog.  Lund notes, with others, that Justice Scalia’s insistence on reaching the Establishment Clause issue in the Salazar oral argument is just one example that he is “clearly frustrated with the current state of the Establishment Clause.  Lund observes that in an earlier interview, Scalia expressed a belief that God may protect the United States, and “the reason may be because we honor Him as a nation.”

In anticipation of the upcoming Miranda rights case, Berghuis v. Thompkins, Sherry Colb at reviews the original reasoning for the Miranda decision and argues that Miranda rights often go unenforced due to police conflicts of interest.  To Colb, the Court seems ambivalent toward confessions produced by police interrogation.

Reason Magazine’s blog highlights United States v. Marcus, a case in which the Court granted cert. yesterday.  The case involves a man who was convicted for sex trafficking, but now claims that some of the conduct for which he was convicted occurred before the enactment of the statute used to prosecute him.

Douglas Berman at Sentencing Law and Policy speculates that the large number of criminal law cases on the Court’s docket this term can be explained in part by the prosecutor backgrounds of Justices Samuel Alito and Sonia Sotomayor.

Tony Mauro, again at the National Law Journal, reviews the recent C-SPAN documentary series on the Court as potentially “the fullest visual portrait ever of the modern-day Supreme Court.”  The interviews reveal intimate vignettes about the justices’ feelings and routines, focusing on what happens behind the scenes at the Court.   For example, John Roberts admits that he “sometimes steals into the Court’s wood-paneled conference rooms to contemplate the work of his predecessors whose portraits adorn the walls.”

Finally, Chief Justice John Roberts was named the tenth most powerful man in Washington by GQ Magazine’s recently released list.  The Chief Justice came in ahead of leaders in the other branches of federal government, including Senate Majority Leader Harry Reid and Attorney General Eric Holder, Jr.