What will likely be the last, best chance for former Enron President Jeffrey Skilling to get out of prison soon is scheduled to be heard in a Houston federal court Monday.
A three-judge panel of the Fifth U.S. Circuit Court of Appeals will hear arguments about how many, if any, of the 19 felony counts on which Skilling was convicted in 2006 should be overturned as a result of the landmark Supreme Court decision in his case.
In June the Supreme Court found that the Justice Department had been misapplying a crime theory, known as "honest services" fraud, in Skilling's case and others. The court held that honest services fraud could only be used when someone failed to live up to his fiduciary duties as a result of taking a bribe or kickback, which was not alleged in the Skilling case.
The ruling raised immediate hopes among his defenders that Skilling, who is incarcerated at a federal facility in Colorado and has served nearly four years of a 24-year sentence, might soon be released.
The Supreme Court's Skilling decision sparked a wave of defense requests to throw out cases that used the honest services fraud theory, and some have been dropped. At the same time, observers believe that the fate of Skilling, an emblematic figure of this century's first big wave of corporate scandals, remains in doubt.
The Supreme Court decision "could turn out to be a major victory for the defense bar but a pyrrhic one for Skilling," says Jacob Frenkel, a former federal prosecutor and enforcement attorney for the Securities and Exchange Commission who is now in private practice in Potomac, Md.