Judge Richard Posner’s derelictions in the Conrad Black case.
WASHINGTON — Late Friday Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit set himself up as both judge and jury and found Conrad Black, once the head one of the most illustrious publishing chains in the world, guilty of fraud and obstruction of justice in running his newspapers. That is somewhat of a comedown for our criminal justice system. Years ago the Department of Justice had arrayed some thirteen charges against him including tax evasion, racketeering, various types of fraud and that lonely obstruction of justice. Black beat them back on nine of thirteen charges, leaving only three fraud charges and the obstruction charge against him. He was sentenced to six and one half years in prison. Then sanity intruded.
This past summer the Supreme Court decided to take up the so-called “honest services” law at the request of Black’s lawyer. The law as applied to Black was, in the view of the Court, unconstitutional. It further found the law unconstitutionally vague, except when bribes or kickbacks are involved—there were no allegations of bribes or kickbacks in Black’s case. The Court’s judgment was unanimous. It sent Black’s case back to Posner for further adjudication. Posner and his associates unanimously threw out two of Black’s fraud counts but stood by one and also that obstruction charge.
Judge Posner is actually very fortunate that the Supreme Court has found the honest services law unconstitutional. By it, if one did not provide what was deemed honest services to his shareholders or presumably to his boss, one was guilty of fraud. Posner despite his obligations to the U.S. Court of Appeals for the Seventh Circuit is given to popping off on all manner of public issues about which he knows very little. For instance he recently popped off on the Catholic Church and on “public intellectuals.” In the first case he sounded about as knowledgeable regarding the Church as an erudite member of the Ku Klux Klan. In the second he was a mere philistine. But in taking such time to write his drivel he clearly is not providing the Court with honest services. I believe solitary confinement would do him just fine.
I think Black’s lawyer, Miguel Estrada, put Posner’s derelictions just right — and again the cloud of honest services hovers over Posner’s glabrous head. Estrada was critical of the information on which Judge Posner based his opinion, saying it “did not accurately reflect the facts, misapplied the test for harmless error review, is inconsistent with the Sixth Amendment, and did not remotely respond adequately to the Supreme Court’s instructions.” Judge Posner took it upon himself to decide matters that Black had the right to have made by a jury.
Estrada goes on, “Instead, the panel [the Court] recounted the government’s spin on its supposed evidence, trivialized the strong defense case, and all but ignored the jury’s rejection of any proof of a real crime with the sweeping acquittals on most of the counts in the original case.” Estrada will appeal to the Supreme Court.
This proceeding has been a travesty from the beginning to its unhappy denouement last Friday. A vindictive government went after a publisher for a sensational amount of booty. Initially it was $400 million. The government had arrayed thirteen charges against him and his loyal associates. It spoke of golden bathroom fixtures, prodigal use of the corporate jet, and a party in Bora Bora—not to be confused with Tora Bora and Osama bin Laden. Now it is down to a few hundred thousand dollars and the golden pipes were forgotten long ago. The government of the United States has destroyed a great publishing empire, providing intelligence to a reading audience of millions of people on four continents. It has left Black practically penniless, though as his defense continues his reputation grows as one of the great defenders of a free press and a valiant fighter. He has shown exceptional grace under the fire of bullies, writing regularly and now coming out for prison reform.
I have had my innings with Conrad Black in the past and know what a formidable journalistic competitor he can be. But all of that is long ago and far away. I have come to admire him and his fight for both his good name and the First Amendment. The irony is that he, a Canadian by birth and now a British Lord, has been a friend of America. He has written biographies of Franklin Roosevelt and Richard Nixon that should give every thoughtful reader cause to reappraise both men. He thought of America as a haven for freedom and excellence. Now his faith is wobbling. But there is always the Supreme Court, which acted admirably in its consideration of the honest services law. And there is Judge Amy St. Eve whose duty it is to resentence Black. She is a sensible judge and can surely discern when we have reached the point in the criminal justice system when enough is enough.