When the Law Gets Cut Down to a Different Size

When many laws are passed into existence, the wording isn’t always clear. The courts are tuning things up.

When laws are passed in the first place, they are generally drafted, read, molded, mashed, squashed and mauled about until they “sound” like they are what the legislators want. Having said that, you can bet your bottom dollar that in many cases, the legislation isn’t that clear and therein lies the legal dilemma.

The law is mostly about precise wording because if it wasn’t, you could drive a truck through some of the holes that exists in legislation today. And in fact, this is what this article is about – the paring back or down of a section of law that was broadly interpreted to mean something it does not. This whole new development came about thanks to federal prosecutors chasing down corruption cases; cases brought against public officials and others in the public sector.

In a nutshell, here is what happened recently when it came to dealing with white collar crime. The Supreme Court took a paring knife to the “honest services law” and cut it right back to the core – call it the very essence of the original law. Now, as a result of this ruling, this law may “only” be used to prosecute kickbacks or bribery. You may be wondering why the courts would cut a law back; a fair question.

The Supreme Court took exception to the way the honest services law was being interpreted by federal prosecutors in corruption cases, largely because it was so vaguely worded that it was used often, expansively and rather creatively by some in a rush to obtain a conviction. In its most recent ruling, the Court also hinted rather broadly, that Congress might want to take another crack at how far the law actually reaches. They didn’t do that without adding a word of caution though; caution as it would apply to constitutional matters.

The interesting rulings did not stop there. Another one handed down by the Court now makes it much more difficult for criminal defense attorneys handling high profile cases to tank guilty verdicts handed out in a hostile community awash with media reports tainting the jury pool. The Court said it would only find those verdicts questionable in a situation that was found to be “extreme.”

So much for the discretion government prosecutors have been using to apply the honest services fraud law; a law initially brought into being in 1988 to try and overturn a 1987 Supreme Court ruling. You may recall the case – Skilling v. U.S. – which involved a former Enron official convicted in one of the largest corruption cases the nation has ever seen. In any event, the net upshot of these latest rulings is that three very recent high profile cases involving corruption must now return to lower courts for another look. Those cases are Black v. U.S., Weyhrauch v. U.S., and Skilling v. U.S. (yes, it will be revisited as well).

The major problem here is and has been the wording of the honest services law. Congress enacted it saying that fraud may be committed by denying someone the “intangible right to one’s honest services.” For many, this created a “Huh?” moment and courts struggling to define the kind or type of crime or wrongdoing that fits into that notion. Suffice it to say that the attempts have not been successful and that is the reason the Supreme Court finally shot an opening volley across the bow of that sinking ship in order to clear the decks – hopefully. So what we have left is a ruling that says bribes and kickbacks are criminal – period. From this point on, it will be interesting to see what develops.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit Fedcrimdef.com or call 303.623.2721.

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