Conrad Black’s American Life

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 New York Sun

“If this stands, my American life is over,” Conrad Black said when we telephoned him in October following the refusal of the riders of the Seventh Circuit of the United States Court of Appeals to throw out the last fraud conviction against him — and also to leave in place his conviction on a count of obstruction of justice. The two counts are but the last shards of the vast case the government brought against him and, for the most part, lost. But those shards could have devastating effect for the Canada-born baron who is a member of the House of Lords, leading to his having to leave America, never to return.

Conrad Black’s cri de coeur reminded us that it is hard to recall, in our long newspaper life, any foreigner who has loved America more ardently than Black has. Or who has risked more of his reputation — and, we don’t mind saying, riches — defending America in the battle of ideas. After all, on the edge of a European continent where the fortunes of a newspaper are often tied to its ideological stance, he had put more than a billion dollars of his broadsheet titles into the defense of America and our principles and ideals. This mightn’t have been a pertinent particular before the court, but it lent a certain poignancy to his plaint about losing his American life.

It also helps explain why Black, a founding director of The New York Sun, picked himself up and announced late last week that he will make an attempt for a second hearing at the United States Supreme Court. One could have expected that his first hearing at the Supreme Court would have settled the matter, for the court ruled — unanimously — that the jury had been wrongly instructed when it was given the possibility of convicting Black for violating what is called the honest services statute. The nine justices concluded that the honest services statute, when applied in situations where there were no bribes or kickbacks (even the prosecution agrees that there were none in Black’s case), was unconstitutional.

In Black’s case, what the Supreme Court fixed on was the fact that two theories of fraud were presented to the jury. One was pecuniary fraud, in which money would have had to have been taken, and the other was fraud in which the accused would merely have had to have denied a company his “honest services.” In Conrad Black’s case, the jury that convicted him wasn’t required to, and didn’t, disclose which theory of fraud it relied on. So neither Conrad Black nor anyone else knows for what he was sent to jail. The jury said, in effect, that he was going to jail for either A or B. Then the Supreme Court said B isn’t a crime. Imagine, we have remarked on a number of occasions, being in such a predicament.

One would have thought that in the wake of such a ruling — again the Supreme Court was unanimous, ruling nine to zero in Black’s favor — the Seventh Circuit would have reacted with a bit more deference. Instead it acknowledged that in two of the fraud cases the confusion was too great. It vacated Black’s conviction on those counts. But on the third fraud count, the Seventh Circuit decided that the jury had to have convicted Black on A rather than B. That’s because that’s how the evidence looked to the judges.* But the judges are not the jury. And it’s by a jury, not by the riders of the Seventh United States Circuit, that the Constitution of the United States gives Conrad Black the right to be tried.

So to this day, no one — neither Black, the prosecutors, the judges who ride the Seventh Circuit, nor the Supreme Court — knows on which fraud theory the jury convicted Black on this last count. Is it the theory that is constitutional or the one that isn’t? This is the point one can expect Conrad Black to ask the Supreme Court to address. The amount of money involved in the count is $600,000,** which is all the money that is left of a criminal case that grew from a lurid report prepared by a so-called independent committee that accused Black and his associates of bilking Hollinger of $400 million. In respect of all of the rest of the money in dispute, Black was either never charged or acquitted or had his conviction vacated. Of all the other charges brought, this is the only remaining count of fraud.

Black was also convicted of one count that didn’t involve fraud but rather obstruction of justice, and it is hard to imagine that the jury reached its decision to convict on this count without having reckoned that Black was guilty of fraud. So if the Supreme Court grants his request for a second review and if that leads to Black being guilty of no fraud, it would be logical for the court take a look at the obstruction count. For if obsruction ends up as all that remains of United States v. Conrad Black, it will be yet another example of the adage that sometimes — not often but sometimes — the law is an ass.

* * *

Now, we are not a lawyer, just a newspaper, and one that has fallen on hard times, at that. But our aging eyes haven’t often seen a spectacle quite like this case — in which an appeals panel is playing a kind of “catch me if you can” game with a unanimous Supreme Court. We would not want to understate the odds that Black faces. He has a steep hill to climb in gaining a second review by the Supreme Court, let alone winning it if he gets a hearing. But neither would we want to understate the courage of Conrad Black, who went from his first defeat at the 7th Circuit to the a unanimous victory in the Supreme Court that helped make American law more just for all those who are put into the dock for these kinds of crimes. He has already reclaimed his honor and begun rebuilding his name. What he is trying to save right now is his American life.

______

* In all counts of alleged theft of money where there wasn’t an option to convict instead using honest services, the jury acquitted Black; or to put it another way, the jury declined to call him a thief.

** According to evidence at the trial, the board of directors of Conrad Black’s company approved the payment, and less than half of the $600,000 was disbursed to Black himself.


The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

By continuing you agree to our Privacy Policy and Terms of Use