Judging the judge in Conrad Black’s appeal

Richard Posner is famous, in legal circles, for a rare act of judicial insolence. In an antitrust ruling more than a decade ago, the appeals court judge wrote an opinion mocking a controlling U.S. Supreme Court precedent as “wobbly,” “moth-eaten,” and “unsound.” The high court’s response was even more surprising: they rolled over and unanimously struck the precedent. They even congratulated him.

Until recently, few in Canada had heard of Posner, a judge who has written some 53 books and who is widely considered one of America’s top legal minds. But from his perch at the U.S. Federal Court’s Seventh Circuit, Posner is once again considering Conrad Black’s case, after the Supreme Court returned it to the appellate panel. Black’s fate now rests largely with a man who has shown him no sympathy in the past—a judge who once described himself as “cold, furtive, callous,” with a cruel streak.

Two years ago, in writing the unanimous, 3-0 appellate ruling dismissing his appeal, Posner was scathingly critical of Black. His conduct at Hollinger International, he wrote, was “ridiculous,” and the “bulk of evidence,” he said, “has to do with pretty naked fraud.” Posner even complained that defence briefs were too long. But in a rare, unanimous decision in June, the U.S. Supreme Court sharply narrowed the law under which Black was convicted of fraud, and ordered the original panel to reconsider. Their decision is expected within a month, prompting a few timely questions: will the judge, famously undaunted by the Supreme Court, back down? And given his gruff rebuke of the defence, why was the case returned to him?

On the latter question, it’s simple procedure, experts explain. Part of the reason is efficiency: the original judges already know the case, says Oscar Chase, who teaches law at New York University. Then there’s the notion of avoiding the appearance of “judge-shopping,” says Wayne State procedures expert William Burnham. Every once in a while, when a judge seems prejudiced, the case will be diverted, Burnham explains. But that’s seen as a “gratuitous insult”—a suggestion that the higher court doesn’t trust a judge’s intellectual honesty or competence. Although the Posner opinion was “very anti-defence, and dismissive,” none of this adds up to grounds for recusal, says Barbara Babcock, a professor emeritus at Stanford Law School. Posner may feel Black is guilty, “but this isn’t prejudice since it’s based on his evaluation of the record.”

Nor is it likely that Posner will have taken the Supreme Court decision personally, say experts. Although the court was critical of his ruling that Black had forfeited his right to an appeal, it took issue primarily with the law the ruling was based on.

Posner’s panel now has to figure out how much prosecutors relied on the now discredited “honest services” provision in convincing the jury of Black’s guilt. At trial, federal judge Amy St. Eve didn’t ask jurors to specify whether they’d found him guilty of outright theft, dishonesty, or both. Was that a harmless error, allowing the conviction to stand, or does it require a new trial?

That leaves Posner a lot of room to wiggle, says Babcock: “All the appeals court has to do is say, ‘Well, it was error, but it didn’t make any real difference in the outcome.’ If it took this route, the case wouldn’t even go back for re-sentencing because all the convictions would stand.” But, she says, the case against Black has “really been weakened,” and laws on prejudice say that if one count is tossed, related counts should go too. Given how much time Black has already done, there may be an “underlying feeling” that it’s enough.

The outcome, she says, is tough to predict. Perhaps because Posner is, too. Last September, for example, the 71-year-old judge, a founding member of the arch-conservative Chicago School, famously came out as a Keynesian. He further betrayed the cause with A Failure of Capitalism. It sides with big government liberals in blaming Alan Greenspan and deregulation for the current financial mess. That he’s a neo-liberal at all is a bit of a surprise: his mother was a Communist. He didn’t move to the right until 1968, a time when almost the entire legal academy leaned the other way.

And Posner is committed to following legal precedent—even when he disagrees with it. In his famous antitrust ruling, Posner ruled with that “moth-eaten” precedent. No matter how forceful he was in dismissing Black’s appeal, he’s well suited to hear the reappraisal, says Washington-based white-collar lawyer Jacob Frenkel. Much of his thinking develops “reactively, and in dialogue with other people’s ideas,” famed philosopher Martha Nussbaum, a close friend of Posner’s, explains. Her 1996 book Poetic Justice is, as she described it to Maclean’s, primarily a criticism of Posner—and sparked the friendship.

He’s “a brilliant fella,” economist Milton Friedman once put it. “And he’s written on everything under God’s green sun.” The list of subjects includes AIDS, porn, Hegel, aging and medieval Iceland. He’s the most quoted living legal scholar in the U.S., has taught law at the University of Chicago for 41 years, and blogs with Nobel laureate Gary Becker. If it weren’t for his advocacy of legal marijuana, experts say he might be sitting on the Supreme Court.

But he’s not without critics. The Chicago Council of Lawyers, in a 1994 evaluation, found him often bored by lawyers’ arguments, tending to steer debate to areas of interest to him, and looking for ways to “modify or overturn settled precedent when he does not care for the outcome that precedent might dictate.” And he can be deeply strange and controversial, arguing, for example, that babies should go to the highest bidder (to replace the adoption system); that the dearth of available black men explains high rates of obesity in black women (they’ve given up); and that high heels are sexy because they suggest women can’t run away. In Black’s case, he dismissed arguments concerning the so-called “ostrich instruction,” on the concept of wilful blindness, with a digression explaining that ostriches don’t bury their heads in the sand. A “canard,” he wrote, “on a very distinguished bird.”

Given his playful snobbishness and affection for the written word, he’s not, in fact, entirely unlike the man whose fate currently rests with him.