Enron's Jeff Skilling Files 237 Page Appeal Brief

Thanks to the WSJ for putting the 237 page appeal brief (pdf) filed by Enron's former President and CEO Jeffrey Skilling online.

I'm just starting to read it, but the section on why oral argument is requested gives you a good sense of its flavor. After pointing out that contrary to the public's perception, Skilling was not convicted of causing Enron's collapse, it states:

Profound, inherent weaknesses in the government’s case—not just gaps in its evidentiary proof, but doubts about its basic theories of criminality—motivated the government to resort to novel and incorrect legal theories, demand truncated and unfair trial procedures, and use coercive and abusive tactics.

No word yet from the Court as to whether it will accept such a long brief. Appeals courts have strict limits on the length of briefs. I remember when the 10th Circuit Court of Appeals fined Timothy McVeigh's court-appointed appeals counsel for filing an overly long (226 page)brief. I thought it was very unfair.


From NACDL's Champion, September/October, 1999,
23 Champion 13 (available on Lexis.com):

In October 1998, the Tenth Circuit Court of Appeals imposed a fine of $ 12,600 upon Richard H. Burr and Robert Nigh, court-appointed counsel for Timothy McVeigh as a sanction for filing an overly long brief in the appeal of McVeigh's conviction for the Oklahoma City Bombing and the resulting sentence of death imposed upon him.

NACDL members Burr and Nigh had requested permission from the court to file a brief in excess of the maximum allowed 100 pages. Their request was denied. Nonetheless, the lawyers filed a 226-page brief, advising the court that they did not intentionally mean to disregard the order, but had failed in their good-faith efforts to shorten the brief. The Tenth Circuit responded by individually fining the lawyers $ 12,600, representing $ 100 a page for each of the excess 126 pages.....[the money was] withheld from their final pay-checks under the Criminal Justice Act.

Through the National Association of Criminal Defense Lawyers, I started a collection fund for them, offering one of the excess pages of the brief personally signed by Burr and Nigh to any lawyer who donated $100.

The Oklahoma City Bombing involved the largest federal criminal investigation in American history. The litigation that ensued over the next two years was simply enormous. Merritt also believed that the court's insistence upon adherence to rigid and potentially arbitrary page limitations, particularly in a death penalty case, threatens the defense lawyer's constitutional duty to render effective assistance of counsel, and the ethical duty to represent the clients diligently to the best of one's ability.

We collected $6250.00.

Burr and Nigh had decided to donate all contributions received to NACDL, with a request that the funds be used to aid in the fight against the death penalty.

The money was donated to NACDL's death penalty committee to be used for public defenders and others to attend death penalty training seminars.

Jeff Skilling is serving 24 years in prison. The trial lasted several months. If his lawyers say they need 237 pages to present his arguments, I say let them.

Update: I just finished reading Skilling's 14 page motion (pdf) justifying the 60,000 word brief. It argues the Government filed a 70,000 word brief in an Enron-related appeal, U.S. v. Brown, and a 56,000 word brief in the Martha Stewart appeal.
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    long briefs (none / 0) (#1)
    by TKindlon on Fri Sep 07, 2007 at 09:01:12 PM EST
    Our experience in this area was positive.  A couple of months ago we asked the Second Circuit for permission to file a 250 page brief in US v. YASSIN AREF, a bogus "terrorism" case out of the Northern district of New York, and, while the court rejected that request they did, finally, grant us leave to file a 200 page brief.  After a week or two of careful editing we were able to get it down to a mere 199 pages and the brief was filed several weeks ago.   Terry Kindlon  

    fine them (none / 0) (#2)
    by eric on Fri Sep 07, 2007 at 10:06:22 PM EST
    If his lawyers didn't get advance permission to file such an outrageously long brief, they should be fined.  The rules are clear.

    They followed the rules and filed (none / 0) (#3)
    by Jeralyn on Fri Sep 07, 2007 at 11:27:07 PM EST
    a motion to submit the long brief with the brief. If you read the l4 page motion I linked to, you would see it says:

    Pursuant to Federal Rules of Appellate Procedure ("FRAP") 27 and 32 and this Court's Rules 27.1 and 32.4, appellant Jeffrey Skilling ("Skilling") moves for permission to file a principal brief not to exceed 60,000 words. This request substantially exceeds the 14,000-word limitation set forth in FRAP 32(a)(7)(B), but this case and Skilling's appeal are sufficiently "extraordinary and compelling" (5th Cir. Loc. R. 32.4) to justify the additional length. A draft of the proposed brief accompanies this motion, as required under this Court's Rule 32.4.

    Similarly, McVeigh's appellate attorneys requested permission to file  an overly long brief. Their request was denied.


    I agree with you but... (none / 0) (#5)
    by Deconstructionist on Sat Sep 08, 2007 at 08:08:05 AM EST
      filing a 14 page motion in support of the request for permission to exceed the limit does not seem helpful, as some might suggest it supports the argument that the lawyers could in fact be more concise.

    gee, that's a real heartbreaker, (none / 0) (#4)
    by cpinva on Sat Sep 08, 2007 at 04:13:06 AM EST
    judges being required to actually read. i am............underwhelmed by the harshness imposed on them.

    granted, some attorney's suffer from dieseling. that said, any maximum limitation is, by definition, arbritrary. an individual facing the prospect of loss of freedom or life should be given wide latitude to present their case on appeal. i trust the judges and their clerks are smart enough to see through the dross, and get to the meat.

    how arrogant of them.

    Brief As Unbrief (none / 0) (#6)
    by squeaky on Sat Sep 08, 2007 at 11:47:01 AM EST
    Could Voltaire's famous quote be applicable here:
    If I had more time, I would have written a shorter letter.

    Or is these loooong briefs as breif as they could be were there all the time in the world to make them brief?