Conrad Black’s <i>Coram Nobis</i>
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all . . . He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
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The Supreme Court’s standard of conduct for a prosecutor was penned in 1935 in an opinion overturning the conviction of an alleged counterfeiter. It is being quoted this week by Conrad Black in a filing alleging prosecutorial misconduct in the case that sent him to prison. He made his filing Monday, a month after emerging from federal prison in Florida, where he completed a 42-month sentence for one count of fraud and another of obstruction of justice. He asks the court to overturn the verdicts.
The press baron, who was a founding director of The New York Sun, was tried in 2008 in federal district court at Chicago, where a jury had acquitted him outright of 9 of 13 counts. He was exonerated on all the most serious charges. It convicted him of three fraud counts and the obstruction charge. Then the Supreme Court, in a unanimous opinion that stunned the legal world, declared that the instructions that had been given to the jury were “incorrect.”
That was because the instructions permitted the jury the chance to convict the former chairman of Hollinger International Inc. under the law of “honest services,” a law the Supreme Court concluded was, as used against him, unconstitutional. When the Court of Appeals for the 7th circuit reconsidered the case, it threw out two fraud counts, leaving in place but one count of fraud and the one for obstruction. Conrad Black failed to get the Supreme Court to take a second look at those counts.
The filing this week addresses one of the most mysterious elements of the case — why did Conrad Black, a member of the British House of Lords who once stood at the helm of a $2 billion newspaper empire, choose to be represented at his criminal trial in Chicago by two small-firm practitioners, one of them from Canada? Though they managed to demolish the government case against him and win the jury acquittals, they were from the start not the lawyers he wanted.
The answer to the mystery turns out to be that Conrad Black couldn’t afford the lawyer he did want and expected to use— and had been using as the case was being built against him. That was the firm of Williams & Connolly in Washington, one of the most famous and effective firms in the world. The reason he couldn’t afford them is that the government seized the funds from the sale of his New York apartment.
Conrad Black said in his filing this week that after he retained Williams & Connolly, he put his apartment up for sale to pay the firm’s projected retainer for the trial. He expected the sale of the apartment to make $9 million available to him. Instead, he alleges, the government used a “misleading affidavit to obtain a defective warrant and seize the apartment proceeds.”
Williams & Connolly, in Conrad Black’s telling, promptly alerted the government to the factual inaccuracies underlying the seizure and also to the “fact that the seizure implicates Mr. Black’s right to counsel of choice.” An attorney at Williams & Connelly, Gregory Craig, at one point wrote a letter to the government calling its action “akin to confiscating David’s slingshot on the eve of his encounter with Goliath.” Nonetheless, Conrad Black charges in his new motion, the government “knowingly” filed “an unsupported indictment” against him “to avoid answering the challenge to the constitutionality of the seizure.”
The indictment accused Conrad Black cheating his newspaper empire in the sale of his apartment. It was one of the charges on which the jury acquitted the press baron. Even then the government tried to hang onto the money from the sale of the apartment. So flimsy was its case that the judge at the trial, Amy St. Eve, determined that its evidence was insufficient to meet even the lower burden of proof that would have been required in a civil forfeiture proceeding. So the government had to give him back the money, though too late to use in his defense.
What Conrad Black is alleging is that his right to the counsel of his choice — which is American bedrock vouchsafed in the 6th Amendment to the Constitution — was violated by the government’s maneuvering. His motion is clearly a long shot. But so was getting a hearing at the Supreme Court, not to mention winning in the high court nine to zero. Prosecutorial misconduct is an issue on which the courts, when they sense it, grow highly eczemic.
In a case several years ago, a federal judge in New York concluded that federal prosecutors actually tried to discourage the accounting firm KPMG from paying the legal fees for some of its employees in a criminal case, even though they had the right to be presumed innocent until convicted. That outrage led to the dismissal of some of the charges by a furious federal judge.
More recently, in the case of Senator Stevens of Alaska, a court-ordered report concluded there was “systematic concealment” of “significant exculpatory evidence” that would have helped the accused senator, and the case was thrown out. Having “concealed exculpatory facts” is one of the things Conrad Black, in his latest filing, is accusing the government of in his case.
Conrad Black has already served his time, so a habeas corpus action, normally used to extricate someone from prison, is in some respects an anomaly. But there is a statute, known as 2255, that could allow Conrad Black to proceed because, even though he’s out of prison, he’s still under certain restraints of the legal system, unable, for starters, to travel to America. Just in case, he has also asked for one of the rarest writs in all of law, known as coram nobis, which Wikipedia describes as issued by a court “to correct a previous error ‘of the most fundamental character’ to ‘achieve justice’ where ‘no other remedy’ is available.”
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Then there is the question of his honor — and Judge St. Eve’s. She is a serious federal judge and cannot be expected to take lightly allegations of misconduct on the part of the government in a case on which she is sitting. The filing that Conrad Black has just initiated would be the first time that she will be able to explore what the prosecutors knew and when they knew it and what they did. The complete record is not public; a number of lines in the public version of the petition Conrad Black filed with the court this week are blacked out. All the more reason for Judge St. Eve to open up this issue in a public proceeding on the question of the government’s own behavior in United States v. Conrad Black.