On the eve of the tenth anniversary of Enron's collapse, the energy giant's former CEO, Jeff Skilling, is again asking the Supreme Court to grant him a new trial.
Skilling, who has served five years of his 24-year sentence for conspiracy, fraud and insider trading, won a preliminary victory last year when the high court ruled the key legal theory used to convict him was invalid, sending the case back to the Fifth Circuit Court of Appeals for review.
But Skilling's hopes were dashed in April when the appeals court ruled the error was "harmless" and did not merit a new trial.
Now, in a 68-page petition filed today, Skilling's attorneys say the appeals court decision makes a "mockery" of the Supreme Court decision, and the petition asks the high court to order a new trial.
At issue is the so-called "honest services theory," which the Supreme Court narrowed in a series of decisions last year.
The theory, which had been widely used by prosecutors in white collar cases, said that it is a crime to withhold one's "honest services" from an employer or shareholders.
The high court said the theory should only apply to employees who are guilty of theft, bribery or similar offenses. Because Skilling was not accused of stealing from Enron, the honest services theory could not be used to convict him.
The appeals court ruled the error was harmless, however, because the jury still could have convicted Skilling of fraud under alternative theories. Jurors in the 2006 trial were not required to specify what theory they used to reach their verdict.
In the new appeal to the Supreme Court, Skilling's attorneys argue that under the law, it is not for the appeals court to determine whether the jury could have convicted Skilling without the discredited honest services theory. The petition says that in rejecting a new trial, the appeals court is improperly ignoring Skilling's defense at trial.
Skilling, 58, crafted Enron's business model. He rose to CEO in 2001, but abruptly resigned six months later — just three months before the company filed for bankruptcy in a massive accounting scandal.
He has consistently denied he committed any crimes.