LAWYER: It's 'Preposterous' Former Enron CEO Jeff Skilling Spent A Day In Jail
Skilling was sentenced in October 2006 for his role in the accounting fraud that caused Enron's spectacular collapse and spurred major reforms under Sarbanes-Oxley.
Skilling has said he wants a retrial because of allegations of prosecutors' misconduct, and now the government is considering a deal to cut his sentence — possibly to avoid dealing with those allegations of misconduct.
Aside from the alleged misconduct, the original case against Skilling was deeply flawed, Houston attorney Tom Kirkendall argues to Business Insider. It basically just accused him of being "too optimistic about Enron" and never suggested he stole a dime from the company, according to Kirkendall.
"I think it's preposterous he served a day in jail much less seven years," he says.
The government prosecuted Skilling under the a statute that makes it illegal to deprive others of "honest services." Kirkendall says the goal of this law was to punish executives for accepting bribes at the expense of their employer. Skilling, on the other hand, only had Enron's best interests at heart, according to Kirkendall. From his blog:
"The Task Force faced a big problem with prosecuting Skilling at all because he never stole a dime from Enron (that is, no private gain). In fact, the Task Force conceded at trial that, not only did Skilling not embezzle any money from Enron, the case against him was not about “greed,” that Skilling always sought to pursue Enron’s “best interests,” and that every act for which he was being prosecuted was undertaken for the purpose of protecting Enron and promoting its share price."
While a federal appeals court in New Orleans upheld that conviction in 2009, it found his sentence was too harsh and prosecutors might have been guilty of misconduct. Prosecutors apparently broke the rules by failing to disclose evidence they uncovered that might have been favorable to Skilling — so-called Brady Evidence.
This is the same kind of misconduct that proved to be deeply embarrassing to prosecutors who went after former Alaska senator Ted Stevens for corruption. (The now-deceased former senator's conviction was ultimately voided because prosecutors didn't hand over Brady evidence.)
"There are very perverse incentives involved in these kinds of white collar prosecutions," Kirkendall says. "If you turn over exculpatory evidence to the defense ... you've given the defense information they can use to prove the innocence of their client."
In the case of Skilling, if the case is retried a whole new set of prosecutors will have to defend themselves against allegations of misconduct that happened years ago.
The so-called Enron Task Force that brought down Skilling and other executives in the first place would also face one more setback if his conviction is overturned.