Judges express skepticism over bid to overturn obstruction conviction
Lawyers for Conrad Black return to court today in Chicago in what could be the climax of his long legal battle for his freedom.
They have already achieved the improbable – persuading the United States Supreme Court to take up Black’s appeal (the court grants only about four percent of petitions that come its way) – and the more unlikely still, getting a 7-2 decision in their favour. Today they are seeking to use the new precedent from the top court to have the convictions reversed. Black is has been out of prison on bail pending the decision. He has served more than two years of a six and a half year sentence.
On June 24, the US Supreme Court ruled that part of the law used to convict Black, along with other Hollinger executives, Peter Atkinson, John Boultbee and Mark Kipnis, of fraud, was so broad as to be unconstitutionally vague. The court remanded the case back to the appeals court to decide whether a jury instructed on the narrower definition of fraud, and faced with more limited evidence, would have still convicted Black and the others, or whether the legal error was merely “harmless.”
The case comes down to this: the jury had been instructed that fraud had two aspects to it: the theft of money from the corporation and the denial to the corporation of the “honest services” of its executives. The Supreme Court said that the honest services theory of fraud had come to be defined too broadly in American law. In a June opinion, the Supreme Court said that to be convicted of honest services fraud there has to be evidence of a bribery or kickback scheme – neither of which were alleged in the case of Black and his associates.
The jury that convicted the defendants did not explain what theory of fraud it based its convictions on: theft, denial of honest services, or both. Black’s lawyers have asked the Seventh Circuit Court of Appeal to reverse the convictions of the executives’ on the grounds that it is possible that the jury found them guilty on the theory of fraud that the Supreme Court has now said was incorrect. Federal prosecutors argue that the evidence of theft was “overwhelming” and that the legal error in the jury instruction on honest services would not have made a difference. In other words, that the error was “harmless.”
Below are several of the basic disagreements presented in the legal briefs that the court will have to sort out:
1. What does the government have to prove to show the error was “harmless”?
2. Was the jury told that they could convict for a denial of “honest services” even if they did not find evidence of theft?
3. Was the jury so persuaded by the government’s evidence of theft that they would have convicted regardless of the definition of honest services?
4. Did the evidence on honest services make the jury more likely to view Black’s removal of 13 boxes from his Toronto office as an attempt to obstruct justice?
UPDATE:
First impressions….
It was a mixed bag for Conrad Black’s legal case this morning judging by the questions asked by the three judges in a rapid-fire oral argument that lasted just over 40 minutes.
More to come…