Former Enron Broadband executive Rex Shelby today filed an amicus brief in conjunction with the Texas Criminal Defense Lawyers Association in support of his former co-defendant, Scott Yeager, whose appeal is now before the United States Supreme Court.
Mr. Yeager’s trial, like Mr. Shelby’s, resulted in a mixed basket of acquittals and hung counts, but no convictions. Messrs. Yeager and Shelby were both scheduled to be retried on the hung counts but they claim collateral estoppel prevents a retrial. Collateral estoppel is invoked when an issue of fact has been determined by a jury and can not be litigated again by the same parties in any future lawsuit – the same fundamental principles enshrined in the Double Jeopardy Clause of the Fifth Amendment which protects a defendant from being retried for a crime for which he has already been acquitted.
In support of Yeager, Shelby and the Texas Criminal Defense Lawyers Association assert that the Fifth Circuit’s standard of collateral estoppel is illogical, impractical and inadequate to protect the liberty of the accused because it forces the Court to read the minds of the jury or, in its most absurd extreme tangent, forces the Defense to set up strawman arguments and knock them down, which amounts to being forced to prove a negative.
The filing is a very readable twenty-four pages; it’s not crammed with legalese, and even has some unexpected flourishes, such as an allusion to Through The Looking Glass by Lewis Carroll:
The analysis in the Fifth Circuit and in other cases in the lower courts is reminiscent of Alice’s argument with the Red Queen: no matter what Alice’s answer, the Red Queen simply changes the question or redefines the pertinent terms until Alice is left with “a riddle with no answer.”1 The sparse words of guidance in Ashe — realism, rationality, practicality — are made to mean too many different things leading to sporadic and absurd results.
If indeed the Supreme Court rules in favor of Scott Yeager (and thus collateral estoppel does prevail), Rex Shelby will benefit because the clarified law will apply to his case. The government will be barred from trying either of them again. How satisfying to have the last word on Enron Broadband Services. How typical that it would be extreme – the Supreme Court! Messrs. Yeager and Shelby, like Enron itself, do nothing in half-measures.