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March 3, 2008

Conrad Black gets a peek inside the American criminal justice system and does not like what he sees

Black Writing for New York Sun, Conrad Black has this remarkable op-ed entitled "My Faith in American Justice." Here are snippets:

It is a terrible thing to be falsely accused, and wrongly convicted, even of a fraction of the original charges, and unjustly incarcerated. For persisting in seeking the recognition of my innocence of these charges, I have been portrayed as defiant, or at least in denial. I defy and deny unjust charges, not the practical difficulties I have faced for the last four years and am facing now.

I would qualify in political terms as a reasonable member of the law-and-order section of the public. And as a conscientious and religious matter, I believe in the confession and repentance of misconduct, as well as in the punishment of crimes. If I had committed any of the offenses charged, I would have pleaded guilty and asked for a sentence that would enable me to atone for my crime and assuage my guilt and shame....

There was no evidence to support two of the remaining convictions, and the only evidence, from the chief cooperating witness, was exculpatory.  For the third count, the evidence was an uncorroborated allegation of a non-incriminating telephone conversation, which did not, in fact, take place....

Some of the jurors, in post-trial comments, by e-mail and on television, where there can be no question of a journalist misunderstanding what was said, confirmed that there remained a reasonable doubt, but that a compromise was reached on acquittals and convictions, contrary to the judge's instruction. One of the jurors stated that it should have been a civil case....

This is the criminalization of what was and remains a civil factional corporate dispute.  My faith in the United States has inspired me to persevere, despite what I believe has been the prosecution's insufficient respect for the Fifth, Sixth, and Eighth Amendment guarantees of due process, of the grand jury as an assurance against capricious prosecution, of no seizure of assets without just compensation, of speedy justice, access to counsel, and reasonable bail.

I have been besieged by various agencies of the U.S. government for over four years, and I know of only one higher bond in U.S. history than the $38 million I have been posting. 

Thoreau wrote: "Under a government which imprisons unjustly, the true place for a just man is also in prison."  These charges and the actions leading up to them have been unjust. Most of them have already been found to be unjust. I cherish my liberty as all people do, but I am unafraid.  I have faith in American justice.

I admire Lord Black for retaining faith in the American justice system despite his travails and his apparent belief in his innocence.  Candidly, I think his faith is badly misplaced.  I would be quite surprised if a Seventh Circuit panel ends up reversing his convictions.  And, even if it does, I would expect the Justice Department to seek en banc and/or cert review of any reversal. 

Moreover, a reversal most likely could just result a new trial, not an exoneration.  And, perhaps most critically, since Lord Black must report to federal prison today, he may end up serving most of his sentence before any of these legal particulars ever get resolved.

March 3, 2008 at 10:20 AM | Permalink

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Comments

I was a defense lawyer for about 10 years in Canada. My impression of the US jury system is that it is wildly maleable - in high-profile trials if the showmanship on one side outdoes the showmanship on the other side, the bigger show wins. For one's personal freedom to be at the mercy of a jury being swayed by the rhetoric of counsel in a trial of a complex range of issues such as corporate finance is not easily supportable. I'm not aware Mr. Black did anything contrary to law in Canada and the standards of corporate governance are essentially ths same in the U.S. While he was at the helm the corporations' shareholders profited and if he swayed corporate boards to cause their corporations to pay him well for what he did, then that's all he did.

Posted by: Rodney Smith | Mar 3, 2008 3:18:56 PM

Anyone who actually goes to trial in the United States is almost assured of being found guilty. I do not know what the exact percentage is, but if my memory serves me at all, it is close to 98%. It's remarkable that our law enforcement and prosecution has become so fierce. Could it be the money and power this new industry has acquired?

Posted by: beth curtis | Mar 3, 2008 5:04:54 PM

These last two comments are amazing, because they both begin by conceding their ignorance.

Mr. Smith is a Canadian lawyer. His entire analysis boils down to “My impression of the US jury system is that it is wildly maleable - in high-profile trials if the showmanship on one side outdoes the showmanship on the other side, the bigger show wins.” Where does he get this from? TV?

Mr. Smith doesn’t really seem to care to address more complicated issues, such as “what is rhetoric” and how one can communicate anything to anyone without “rhetoric.” Of course, he never actually was counsel in an actual jury trial so he has no hope of even beginning the conversation. It is great and all to say that a jury trial is about “rhetoric” but without actually giving definitions to terms he sounds like a lay person.

Ms. Curtis cites statistics and then concedes that she doesn’t have the sources for them. This is really surprising. Perhaps if she could provide statistics, they might still be slightly misleading, because 1) felony criminal defendants have an absolute right to a jury trial (whereas civil plaintiffs and defendants do not) even a lowlife without a single year of law school can insist upon a jury trial regardless of the law or facts; 2) the threat of a jury trial will often result in dismissals of charges.

Of course, Mr. Black is no improvement. He expects to garner sympathy by stating that he “in political terms as a reasonable member of the law-and-order section of the public.” Is this supposed to make me like him?

Posted by: S.cotus | Mar 6, 2008 11:29:40 AM

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