Justice Denied: Four Strikes Against Lord Black Where There Should Be None
July 14, 2007 · By George Freeman
Reaction to the conviction of Lord Black on four counts is, for the most part, malicious hackery carting out old worn stories of extravagant living, disconnected to whether or not Black was convicted beyond a reasonable doubt. As far as most media outlets are concerned, “it was a complex case … But boy, that jury sure seemed to separate the wheat from the chaff.”
Stupid analogies to harvesting grain aside, as the jurors begin to speak out it becomes clear, while they may have conscientious, they hardly qualified as a jury of Lord Black’s “peers,” capable of processing the material, discerning what was actually proof beyond a reasonable doubt, and rendering a fair verdict. Lord Black was not convicted beyond a reasonable doubt because the government’s smoking gun, David Radler, turned out to be a first class serial liar.
Pierre Lemieux provides about the best reaction:
… On the 13 charges against Lord Black (42 in total against all accused), was there any chance that jurors, in their quest to compromise toward unanimity, would not retain at least one? The probability of finding 12 persons who have not been plunged, from their most tender years, into the sea of statist slogans that pass for a social and legal philosophy is, I fear, very small.
can no longer return to Canada and the Liberals will soon be back in power. Then we’ll all be able to wallow happily in our country’s mediocrity once again. [A]s the jurors begin to speak out it becomes clear, while they may have conscientious, they hardly qualified as a jury of Lord Black’s “peers,†capable of processing the material, discerning what was actually proof beyond a reasonable doubt, and rendering a fair verdict. And the tour continues: Conrad Black wasn’t brought to trial for anything he did wrong.
Agreed, my favorite one is “the rich get richer” I really believe Conrad got convicted of being loaded. The vast majority of us are jealous and revel in watching the elite brought down a peg or two.
15-20 is a fair penalty to pay for allowing one’s wife to throw extravagant parties and stuff.
[...] Canadian columnists (with the exceptions of Andrew Coyne and especially Lemieux) were busy frolicking in their coast-to-coast orgy of glee yesterday. Can you blame them? How often [...]
[...] Conrad Black is acquitted of some charges and convicted of others by a jury: and somehow this is turned into a monstrous act of personal vengeance by the covetous, jealous masses against the innocent, suffering Lord Black. No-one seems to actually deny that Conrad did, in fact, do the stuff he’s been found guilty of doing. And the jury heard a lot more evidence than we did. But somehow this is all the jury’s fault, and the charges were blown out of proportion, and yadda yadda yadda. [...]
I seem to be missing something here. The non compete clauses were found to be legally agreed upon contracts yet the payments sent by FedEx were found to be a use of the US Mail for a fraud? Three counts, Kipnis received such no payments yet was a party to the fraud. The jury seemed to find a charge that they could agree upon in spite of the non sequitur.
While Black’s removing documents from his vacated office seems suspicious it does not meet the legal test of Judge Amy’s instructions, to wit: were they part of an “official proceeding” in the United States and at that point they were not.
From what I gather, the mail fraud charges come into play because of the international nature of how Hollinger International and Hollinger were managed; Chicago, Toronto, and London.
Any fraudulent scheme would not have been possible without Kipnis arranging the deals. And Kipnis did arrange the paperwork for the deals, but doing so thinking what he was doing was perfectly legal, as did a lot of other legal opinion, thus co-ordinating the agreements for the approval of the audit committee; the approval of the audit committee was granted in each instance.
It doesn’t matter that Kipnis derived no kickback or benefit, beyond his usual yearly bonus of something like $150,000; a pittance relative to the deals he arranged. But it doesn’t matter! The government alleges that he was wilfully orchestrating a fraudulent scheme. While they try to say the bonus was his kickback, it wasn’t. It is perfectly reasonable that there was nothing out of the ordinary with him getting such an annual bonus, quite standard for his position in such a company, and, again, a mere pittance of the non-compete numbers involved.
Obviously there was no fraudulent scheme here when you consider Kipnis’s involvement. Clearly the jury didn’t get it! And that’s not to say anything particularly critical about the jury beyond saying that they were not adequately qualified to adjudicated such a case; not sufficient a jury of the defendant’s peers. But the fact that the jury has, like the government initially, thrown such an obviously innocent man into the Court of Appeal shark tank strengthens the appeal of the other three defendants.
You’re exactly right on the obstruction of justice charge. The government could not prove, beyond a reasonable doubt, that Lord Black was intentionally obstructing an ongoing investigation; the documents in the boxes had already been disclosed to the SEC.
Sorry, that ongoing investigation being relative to the US. But the prosecution played up the fact that Black was flouting a Canadian court order. Talk about a jurisdictional reach!
Sorry, jurisdictional grab is more like it, that is by the Northern District of Illinois over the Canadian province of Ontario.
Aaron, 15-20 is really too light of a sentence for one’s wife having a business/birthday party (she was on Hollinger’s board), of which you pay cover one third of the tab, and a Chicago jury acquits you for it; heck, it showed he was such a schemer.
Come on, the maximum 35 years is a fairer penalty! Black would be what, ninety seven years old when his debt to American society was fully paid?
Sorry, that ongoing investigation being relative to the US. But the prosecution played up the fact that Black was flouting a Canadian court order. Talk about a jurisdictional reach!
This shouldn’t come as a surprise to anyone – Black’s companies were being traded on US exchanges, making the practices of the officers of that company subject to US Securities law.
It’s a reach of jurisdiction in a geographical sense, but one that Black would have knowingly submitted to when he chose to list his company on exchanges under the jurisdiction of the US SEC.
I’d be more sympathetic to the “overreach” complaint if it were the case that it had been enforced without Black having previously agreed (implicitly at least) to the conditions of listing a company on US exchanges.
What does a Canadian court order have to do with US Securities law, especially one where, when the boxes were returned untampered, that very court took no further action. Moving those boxes never became a crime in Canada.
More importantly, it was not clear beyond a reasonable doubt that Conrad moving those boxes obstructed any ongoing investigation in the US, least of all the US SEC, to whom he had already disclose all of the relevant documents in those boxes.
What does a Canadian court order have to do with US Securities law, especially one where, when the boxes were returned untampered, that very court took no further action.
Quite a bit actually. Black’s companies (and Black himself) were under active investigation by enforcement agencies on both sides of the border. Canada and the US have numerous agreements regarding investigative collaboration.
I suspect the fact that the US SEC was moving to actively prosecute Black is a big chunk of the reason that no further action was taken in Canada. (Not to mention that our securities fraud laws are relatively lenient compared to the US)
As for the return of the boxes, that’s a bit of a red herring. The only reason Black returned those boxes is because that video came to light. (I really don’t believe he was taking them out to polish them) He returned them untampered because at that point if he’d tampered with them, he’d have virtually no credible defense for his actions in court. (I suspect that any lawyer worth their salt would have counselled Black to just return them)
Obstruction of Justice is a crime of intent – and arguably, Black’s intent was to obstruct or obfuscate the investigations that were already going on at that time. {It’s not like his legal troubles were news at that point}
As for whether those boxes contained anything material to the investigation, that’s actually quite irrelevant from the standpoint of his actions under the law. At that time (as evidenced by the Court Order), clearly investigators believed that whatever was in those boxes was materially relevant to the case at hand.
Had those boxes “vanished”, Black might have been able to argue that the “mishandled” evidence contained documents substantiating his claims in an effort to cast doubt upon the completeness of the prosecution case.
Lord Black had been served with an eviction notice! That’s his justification for moving those boxes, which were shown to not only include documents already disclosed to the SEC but personal bank statements and other personal affects. All relevant material had already been placed in the hands of the SEC.
And obviously, it is not within the purview of the Northern District of Illinois, or any American jurisdiction for that matter, to enforce a Canadian court order.
Any conviction of obstruction of justice must be beyond a reasonable doubt! The fact that Black had not even received notice of the SEC investigation at the time he moved the boxes (His lawyers testified they hadn’t told him yet, having just received it when he moved the boxes. His secretary, who was there moving the boxes and handled much of his affairs, testified she knew nothing of the SEC investigation.), compounded by the matter of his eviction notice, a notice to clear his things out of an office he had occupied for years, establishes reasonable doubt that Lord Black had any INTENT whatsoever to obstruct justice; especially given that no relevant materials in those boxes had not already been disclosed to the SEC.
Where’s the clear cut obstruction of an ongoing US investigation? It isn’t clear cut, so there is reasonable doubt. He should have been acquitted.
Where’s the clear cut obstruction of an ongoing US investigation? It isn’t clear cut, so there is reasonable doubt. He should have been acquitted.
First off, the “eviction notice” argument only seems to be dangling about the Conrad Black Fanclub sites. I can’t find anything that substantively corroborates it, so I’m going to politely call that line of reasoning mostly assertion.
A little bit of digging turns up this explanation of the jury’s finding:
Steven Davis, Montreal: How can Black be convicted of obstruction of justice in the U.S. for an act that he committed in Canada?
Paul Waldie: That is a really good point and it is something that Lord Black’s lawyers pounded away at during the trial.
The issue came down to whether Lord Black was obstructing investigations by U.S. authorities. That included a grand jury probe, an investigation by the U.S. Attorney’s office and an investigation by the Securities and Exchange Commission. All three were underway when Lord Black took the boxes.
Unless you were in the courtroom, hearing the evidence and party to the deliberations of the jury, I would suggest that your protestations will now have to wait and see what the appeals process turns up.
Thanks for your fanciful effort to dispute the existence of an eviction notice.
Look, it remains to be said that the prosecution never disclosed the contents of those boxes to the jury itself because it knew that doing so would help establish reasonable doubt that Black INTENDED any obstruction of justice. There was also a burden of proof on the prosecution to prove that Conrad Black knew of the ongoing SEC investigation, which Black’s lawyers testified they hadn’t told him yet because they had just received the notice when he moved the boxes.
The eviction notice, the personal affects in the boxes, the previous disclosure of all relevant documents in those boxes to the SEC, establishes reasonable doubt that there was any intent to obstruct an ongoing US investigation.
The video shows him flouting a Canadian court order, but the Canadian court took no issue with him doing so because it believed it to be a misunderstanding; the boxes were returned untampered upon request. The prosecution cleverly showed the video of him moving boxes despite having no “smoking gun” to prove, beyond a reasonable doubt, that he was obstructing ongoing US investigation.
Thanks for your fanciful effort to dispute the existence of an eviction notice.
Incorrect – I said I could not substantiate the claim. I see lots of blogs asserting such, but no corroborating evidence. (Doesn’t mean it doesn’t exist, merely that I don’t have adequate evidence to convince me of it being anything other than an assertion)
The prosecution cleverly showed the video of him moving boxes despite having no “smoking gun†to prove, beyond a reasonable doubt, that he was obstructing ongoing US investigation.
Clearly, the jury, who sat through and heard the entirety of the evidence, did not agree with you on that matter. (Or are you claiming to be privy to exonerating information that was denied the jury?)
Remember, Black still has the right to appeal these rulings. If, as you claim, Black has been wrongly convicted, then one would expect that the appeals process should readily reveal such.
In the criminal justice system of the United States one is to be tried by a jury of one’s peers. Given the wide swath of charges thrown at these defendants, the inexperience most of these jurors would have had in such matters, it being a “blue collar” jury, this was hardly a jury of these men’s peers.
But fair enough, they got the jury that they got. That said, to the extent that this jury did not grasp the significance of signed legal contract, approved by an audit committee staffed by very independently wealthy well-accomplished individuals, nor the significance of Lord Black breaching a Canadian court order versus obstructing an official US proceeding, there are grounds to criticize the competence of this jury.
Now, I’m not getting carried away here. The jury appeared to all to be very diligent and thoughtful, but clearly, when you have jurors saying after the fact that they though David Radler was “covering for his buddy,” Conrad Black, they obviously didn’t grasp the significance of some of the testimony. David Radler was supposedly the government’s “smoking gun”! But he is a self-confessed liar and may have even perjured himself in these proceedings (saying he didn’t know what kind of sentence he would get in Canada when he had already hired one of the best parole lawyers in Vancouver), let alone the fact that he cut himself this deal to avoid prosecution on another matter he was going to take a major hit on anyway, unrelated to the other defendants, as pointed out in this trial by Mark Kipnis’s lawyer. But no, at least one juror thought Radler was “covering” for Black! Go figure.
I hope the appeals process works in Lord Black’s favour, yes.