Evidentia

Conrad Black portrait by Andy Warhol

And what if … What if Conrad Black’s appeal of his fraud charges before the US Supreme Court actually resulted sometime later this year in an acquittal? In other words, what if the Supreme Court’s striking down use of the honest services theory meant that the Appeal Court in Chicago ended up tossing out his fraud convictions because they had been tainted? In that case, could his remaining conviction for obstruction of justice (which he has not appealed) have any meaning at all?

I ask these questions because I remember the stirring speech Ron Safer made, on the arbitrary power of government, towards the end of the trial of the Hollinger Four (the co-accused were: Conrad Black, Peter Atkinson, Jack Boultbee and Mark Kipnis). According to my notes, it was on June 26th, 2007. Mr. Safer, a noted Chicago criminal lawyer, was defending Mr. Kipnis, a former lawyer at Hollinger International. (Mr. Kipnis also appealed use of the honest services theory in his own conviction, before the US Supreme Court.)

I remember back in 2007 Mr. Safer reviewing government strategies: for example, the government sends Wells letters (when the Securities and Exchange Commission serves notice it is planning to enforce action against individuals or companies); the government threatens individuals with penalties, lawsuits and disbarment; the government decides not to call key witnesses; the government constructs as damaging a case as possible and intimidates witnesses in order to get convictions; the government pressures witnesses to change their stories even to the point of perjury.

The government can be monolithic

“Why is the government asking you to make a critical decision, based on missing information,” Mr. Safer asked the jury, “whereas we [the defence] don’t have to prove anything? … People remember what they want to remember and they discard the rest. Why? Because they were threatened, they feared a lawsuit from the SEC later when people started looking at things under a microscope …”

Mr. Safer concluded, “Pressure from the government is truly an awesome thing. The true test of character is not what people do in good times, but what they do in bad times, under pressure. You have seen the power of the government, but that power ends at your jury room door.”

Mr. Safer’s words certainly struck a chord with me: the power of the US government is truly awesome; after all, in federal prosecutions of criminal cases in the United States, the conviction rate is 95%. The cards are definitely in the government’s favour.

Despite this stirring speech, Mark Kipnis was ultimately convicted of fraud, just as Conrad Black was.

With hindsight, it is clear that the time for Mr. Black to object to government strategies, or its use of the honest services theory, would have been in an editorial in one of his newspapers, perhaps, or over drinks with a congressman, before any shareholder revolt occurred, before the meltdown of his reputation and finances, before any criminal investigation was even contemplated, let alone the unending cascade of lawsuits. According to today’s Chicago newspapers, Mr. Black is now facing a $71 million lawsuit from the Internal Revenue Service for back taxes it claims are owed – the IRS is another arm of the US government. Of course, he is strenuously defending himself, as is his right.

With hindsight, the time for Mr. Black to object to government strategies was definitely not after he had been convicted, and locked up in prison. If there is a lesson to be learned, it is that this entire fiasco could have been avoided, if he had shown more prudence. After all, as the saying goes, it is better to be prudent a hundred times than to be killed once.

Which makes me wonder why, where and when Mr. Black lost touch with reality. Could he have been willing to leave his fate to a mere roll of the dice?

Roll of the dice

PS: As reported on July 19th 2010, Conrad Black will apparently be granted bail while awaiting resumption of his fraud trial.