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May 19, 2009

Should Conrad Black (and Jeff Skilling and others) be set free pending SCOTUS action?

Though the Supreme Court's cert grant yesterday in the criminal appeal of media mogul Conrad Black raises mostly white-collar substantive criminal law issues (as noted by bloggers here and here), I am wondering if and how this should impact the quasi-sentencing issue of bail pending appeal. 

As noted here, Black was denied bail pending appeal by the Seventh Circuit last year and has now served more that a year in prison.  Though the SCOTUS cert grant does not ensure Black's convictions will be reversed, it does greatly increase the chances he could be freed eventually.  However, given the standard (slow) pace of SCOTUS action, Black's case won't be argued to SCOTUS until the fall and a ruling seems unlikely before 2010.  In light of the cert grant, it seem to me that Conrad Black now has a much stronger argument that he should be able to be free rather than locked up while his (suspect?) convictions are reviewed.

Moreover, as detailed in this Houston Chronicle article, the fate of at least one other high-profile white-collar defendant also could be impacted by the now-pending Black SCOTUS case:

The U.S. Supreme Court’s decision today to hear the appeal of former media mogul Conrad Black could bode well for imprisoned former Enron CEO Jeff Skilling. “Skilling’s crossing his fingers,” said Wayne State University Law School professor Peter Henning, who is familiar with both cases. “This is Skilling’s best hope.”

Last week Skilling appealed to the high court clear up questions about a prosecution theory of guilt that backfired in other Enron-related cases, but was embraced by appellate judges in his case. The Black case ... involves the same theory, so the outcome of his appeal likely means the 5th U.S. Circuit Court of Appeals panel that affirmed Skilling’s 19 convictions will have to take another look....

“In effect, he’s in a bit of limbo now,” Henning said. “Regardless of what happens in Black, his case will get remanded for reconsideration to the 5th Circuit.” Skilling’s case still has a chance to be heard by the Supreme Court, but Henning said it’s unlikely after a case involving such similar issues has been accepted.

Daniel Petrocelli, Skilling’s lead lawyer, today called the Black case’s acceptance for review “a very significant development, and not just for Jeff Skilling’s case, but frankly for our entire justice system.”

Does Skilling likewise now have a much stronger argument for release pending appeal, especially given that it could likely be a full two years before SCOTUS decides Black and then the Fifth Circuit decides what the Black ruling might mean for Skilling's case?  And are there lots of other similarly situated white-collar defendants serving time for honest services fraud that should now be going back to lower courts citing the Black cert grant to try to get back home while appeals are on-going?

May 19, 2009 at 01:18 PM | Permalink


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I don't really understand what you are trying to suggest Doug. My flippant answer is, "why would they?" but you haven't asked the question out of idle curiosity.

The fact that the SC has granted review is neither here nor there. Until they issue an opinion overturning, the lower opinion stands.

Or is this another one of those silly "future dangerous" ideas that you are pushing.

Posted by: Daniel | May 19, 2009 2:36:05 PM

Is there a precedent for defendants in Skilling's situation to receive bail pending resolution of their cert. petition? It cannot be a common occurence.

Posted by: Marc Shepherd | May 19, 2009 2:39:17 PM


Though I do not know what you consider my silly "future dangerous" ideas, I do know that Black is at no serious risk of committing future crime while awaiting the outcome of his SCOTUS case. Thus, since the grant of cert make a lot more possible (perhaps even likely?) that his convictions will be overturned, the issue becomes whether he should be (wrongly) confined for a year that he will never get back if SCOTUS rules in his favor.

If freed pending a SCOTUS determination, Black will not get "credit" for the year he is out if in fact his conviction is affirmed. Thus, the issue is whether, when we have this uncertainty, he should be locked up or free while these matters are resolved. Of course, this is the issue that always arises when we deal with bail pending appeal, but the general assumption is that cert granst are so rare, just the possibility of a cert grant should not allow staying free. But now we have the certainty of a SCOTUS ruling --- plus the fact that SCOTUS rarely grants cert to affirm a circuit ruling.

Have I explained myself better? My point is merely that the fact of the cert grant radically changes the likelihood of Black's convictions being reversed, which in turn legally influences the (discretionary) decision of whether he should be free during the pendency of his appeals.

Posted by: Doug B. | May 19, 2009 2:57:33 PM

Doug. Yes, that's the point I thought you were making. I supposed I shouldn't have called it silly. Sorry. I just happen to disagree with it.

I think it's speculative to wonder what judgment the supreme court will make in his case. While you may think it's less likely, it certainly is possible that they vote to uphold conviction and the sentence. In which case under your approach he would get out of jail free for a year or longer.

I'm not unsympathetic to an innocent man being in jail. But what has been done has been done and I just think it should rest until such time as a definitive answer has been given one way or the other. Let's confront the future when it's actually here.

Posted by: Daniel | May 19, 2009 6:22:41 PM

Because a person is convicted of having destroyed over $6 million in economic value, they have killed an economic person, the economic value of a life. They should be summarily executed in the basement of the courthouse for first degree murder.

Posted by: Supremacy Claus | May 19, 2009 8:20:40 PM

The question a few folks might be asking. How did Conrad Black get his case to the Supreme Court? It appears that the rich get richer and they also get cert.

Posted by: mpb | May 20, 2009 5:08:16 AM

Daniel, you say "under your approach he would get out of jail free for a year or longer." A much more accurate description is that he would merely DELAY the completion of his prison sentence for a year or longer.

You also say "what has been done has been done and I just think it should rest until such time as a definitive answer has been given one way or the other." Well, though it is "done" that Black has already served more than 1 year in prison, it is not yet "done" that he will serve (or should have to serve) another year or longer in prison while we await this "definitive answer" from the Supreme Court.

As a fan of liberty (and limited government spending), I think Black should be allowed to "rest" outside of prison while we await a SCOTUS ruling. Unless and until you convince me that he presents a threat of future crime, I do not understand why you think he should have to keep resting in prison (at taxpayers' expense) while we all await a SCOTUS ruling.

Again, we both agree Black is never going to get back the year he has already served in prison (that is truly "done"). But the precise question of ths post is whether, during this unique and temporary period of uncertainty, should he have to serve another year in prison NOW? I think a good argument can/should be made that he should be free during this uncertainty period since we know SCOTUS will be reviewing his conviction; I am eager to hear a full argument for why you think he should/must stay in prison during this uncertainty period.

Posted by: Doug B. | May 20, 2009 7:37:14 AM

Looks like the classic authoritarian-liberal divide.

I agree with Doug. Give the benefit of the doubt to the citizen in the cell.

Posted by: John K | May 20, 2009 9:15:56 AM

I think it's speculative to wonder what judgment the supreme court will make in his case.

You can look up the statistics: a cert. grant carries a high probability of reversal. Defendants like Black are routinely allowed to remain free on appeal, where the probability of success is much lower than if you have a cert. grant.

Posted by: Marc Shepherd | May 20, 2009 9:27:03 AM

" I do not understand why you think he should have to keep resting in prison (at taxpayers' expense) while we all await a SCOTUS ruling."

It's a philosophical issue. I am a stronger believer in innocent until proved guilty. I believe that the onus is on the government to make it's case that you are guilty; the burden of proof is on the government. In order to be convicted of a crime the police, the prosecutor, and the judge/jury have to be convinced you committed the crime. That's three bites at the apple. So once someone has been convicted of a crime that burden of proof shifts. The onus is now on the convicted criminal to prove he is innocent. So while it's interesting to me that the SC has decided to take up his case, that fact alone is not enough to shift the burden back to the state. Black is now guilty until proved innocent. I don't believe that guilty people should be let free until they have served their time.

The difference I think lies in the way we see the importance of SCOTUS review. You see it as "radical". I see it as interesting but nothing that changes the fundamental equation of justice.

Posted by: Daniel | May 20, 2009 10:02:10 AM

Daniel, do you understand the public policy reasons for allowing people to remain free pending appeal? Let me explain them:

It's true that after his conviction, the defendant is (in effect) presumed guilty. But should the appeal fail, the government does not lose its opportunity to extract its pound of flesh. Should the appeal succeed, however, there is no way for the defendant to get back the time he spent in prison. That is why the law permits defendants to remain free pending appeal, provided certain conditions are met (a credible appellate issue, not a flight risk, not a danger to themselves or to the community).

So Doug is asking why Black should not be entitled to bail pending Supreme Court review, given that the Court's review has a statistically higher probability of turning out in Black's favor than the initial appeal did. I am not denying that there are also credible policy reasons for keeping Black in prison, but it is a closer call than you are acknowledging.

Posted by: Marc Shepherd | May 20, 2009 1:20:45 PM

Marc. I never meant to suggest that it wasn't a close call. That's why I retracted my statement that labeled Doug's argument "silly". However, in making that call I come down on the other side than Doug (and apparently you too).

"Should the appeal succeed, however, there is no way for the defendant to get back the time he spent in prison."

Sure, and when the guilty go free the government doesn't have any recourse either because of the Double Jeopardy clause. Sometimes lines will protect the guilty, sometimes those lines will harm the innocent. This is not a perfect world. The point is that when you draw lines they should be stuck too. I don't believe that Black, or anyone else, should be out free on bail pending appeal.

Posted by: Daniel | May 20, 2009 4:42:53 PM

Black should not go free pending appeal because, even if he is right about the instructional error, he must surmount the 7th Circuit's conclusion that the error was harmless and that, in any event, he forfeited his right to complain by objecting to a special verdict precisely so he could profit on appeal from the ambiguity posed by a special verdict.

Posted by: Da Man | May 21, 2009 1:00:26 PM

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