Okay! I finally figured out what is going on with Hirko.
There was a time when Hirko, Yeager, and Shelby each had a petition before the SCOTUS at the same time. The SCOTUS decided to hear Yeager’s argument and not hear Shelby’s. They published no opinion on Hirko’s at the time. What we know now is that the SCOTUS held Hirko’s petition pending their decision on Yeager. So now, both Yeager’s appeal and Hirko’s appeal have been remanded to the Fifth Circuit. Shelby gets a chance at the Gilmore level with the option to appeal to the Fifth Circuit.
What does this mean for Hirko’s plea?
This is where Cara Ellison’s heart breaks. The government crafted the plea to lock Hirko out of exactly this eventuality. He agreed to plea guilty, no matter what happened to Hirko’s or Yeager’s appeal at the Supreme Court, and he can not withdraw his plea.
My feeling is that if the Supreme Court decrees that one’s Constitutional rights have been violated, there must be recourse to correct the situation. Hirko pleaded guilty because he was tired of fighting; he wanted this mess to go away. Had he waited, he would have the same shot as Shelby with Gilmore and then the Fifth Circuit. But he was so eager to get it over that he took a plea. The government, possibly fearing that Yeager and Hirko both had a good shot at the Supreme Court, specifically barred him from asserting or correcting the violations to his Constitutional rights. So what happens if Hirko is eventually legal exonerated and yet is still obligated to spend sixteen months in prison? How can that possibly be legal – or ethical?
One possible avenue for Hirko is Judge Gilmore. Gilmore could effectively choose not to accept the plea by refusing to sentence within the plea range. Gilmore originally declared the sentence too light. But the SCOTUS decision could change her mind. It will be interesting to see what Hirko’s attorneys do.
What interesting legal cases the Enron defendants provide. How marvelous. How sad.
