The ongoing saga of the US Justice Department’s attack on Conrad Black, former proprietor of the London Telegraph, The Spectator, and other plum media properties (at one time, he presided over the world’s third largest newspaper empire), is an object lesson in judicial arrogance and overreach. To do justice to this complex tale of gross injustice would take a very long essay if not a book. I do not propose to undertake either. But because the case seems to me to compass not only a private tragedy but also a dangerous public judicial trend, I thought I would offer a few brief remarks, occasioned by the closing of an important chapter in the story last week: the sentencing of Black to 6 1/2 years in prison for obstruction of justice and fraud.
Black is appealing the sentence, and I wish him success. If the commentators are to be believed, however, he and his attorneys have their work cut out for themselves: only a very small percentage of appeals are successful.
It could have been worse. At one point in the trial, prosecutors had assembled charges that, cumulatively, could have brought a sentence in excess of 100 years. In recent months, they spoke ominously of seeking “24 to 30 years.” Black is 63 now, so the idea was to be sure that he would die in prison.
What had he done to occasion the unbridled wrath of the U.S. Justice Department, or at least its representative, Patrick Fitzgerald? You might as well ask what Scooter Libby, another conspicuous object of Mr. Fitzgerald’s attention, had done to merit his conviction. (Let’s see, exactly what had Libby done? Take your time . . .)
I do not mean, by the way, Patrik Fitzgerald the British singer-songwriter but Patrick J. Fitzgerald, U.S. Special Counsel. If there were a Louis de Saint-Just Award for perverting justice in the name of misplaced self-righteousness, Mr. Fitzgerald would be a strong contender for the title. Like his pal Maximilien Robespierre, Saint-Just was a man with a mission. (Not for nothing did Camus, describing Saint-Just’s harangues, settle on the phrase “style guillotine”.)
Saint-Just saw himself as the embodiment, or at least one of the prime guardians, of Virtue. Everywhere he looked, people were betraying the ideals of the French Revolution. It was up to him to bring them all back into line. If examples had to be made by beheading a few thousand members of the nobility, so much the better. That cathartic ritual not only served the malefactors right, it also, in the eyes of Saint-Just (himself eventually a victim of the Revolution: it is ever thus) served The Cause. It was an “example,” as Mr. Fitzgerald might put it, to other potential wrongdoers.
I believe that the analogy between Patrick J. Fitzgerald and Saint-Just might be developed in illuminating (not to say admonitory) ways. I leave that task for another moment. For now, let me return to Conrad Black and that 6 1/2-year prison sentence. Black was convicted on 1 count of obstruction of justice and 3 counts of fraud. Many people convicted of far more heinous crimes are handed lesser sentences. (The same day Black was sentenced, Michael Vick, the dog-baiting ex-football star was sentenced to 23 months for organizing a lethal dogfighting ring and for lying about the extent of his involvement.)
The obstruction of justice charge against Black provided the one Perry-Mason moment in the trial. The prosecution gleefully played a security video tape of Black and his chauffeur removing boxes from his Toronto office. How’s that for “Gotcha!”? I’ve seen the episode reported in the most lurid way.
It was a dark and stormy night . . . Out of the mist, a limo [a black limo, naturally] glides noiselessly to a stop in a lonely ally outside the Canadian headquarters of Hollinger, Inc. . . . The car door opens, and out steps Lord Black of Crossharbour, attired in black hat, black cape, and black rubber-soled shoes . . . Accompanied by his trusty chauffeur and Peter Lorre, Black strides furtively across the rain-spattered macadam towards a door marked “Corporate Records”. . .
OK, I paraphrase. But what was described as a nighttime assault actually took place in broad daylight. Black’s secretary was packing up because Black had been evicted from the premises. Two attorneys hired to deal with a U.S. Securities and Exchange Commission investigation into Hollinger’s affairs testified that they hadn’t notified Black of the SEC’s interest in the documents he removed. When ordered to return them, he did so tout de suite and right speedily. So where, pray tell, is the obstruction?
As for the fraud charges, well, you need a legal hermeneutician to untangle them. The gist of the case seems to revolve around some “non-compete” agreements Black and his colleagues had entered into with a company called CanWest. He and his associates pocketed the money from these agreements rather than turning it over to the company. “So what?,” you might ask, beating me to the punch. So what, indeed. As far as I have been able to determine, there is nothing illegal about that. “But what about the shareholders?” comes the objection. “Why didn’t they get the dough?” Why should they? CanWest wasn’t worried about competing against Hollinger. They were worried about competing against Conrad Black.
The fate of the Hollinger shareholders was a central leitmotif in the Black trial. Judge Amy St. Eve, in sentencing Black last week, sternly told him: “Mr. Black, you have violated your duty to Hollinger International and its shareholders.” But wait a minute, if the issue is the fate of the Hollinger shareholders, shouldn’t the judge order Black back to the helm of the company? When Black was booted, the company’s stock was trading in the $16 range. Now it hovers at about 90 cents. How’s that for looking after shareholder interests?
Conrad Black’s lack of contrition was made much of during the course of his trial. But in his statement to the court last week when he was sentenced, Black did express sorrow over one thing. “I have very profound regret and sadness,” he said, “about the serious damage inflicted on all the shareholders [of Hollinger International], including employees, by the $1.8 billion-dollar loss of shareholder value under my successors.” If not looking after shareholder interests is a crime, Patrick J. Fitzgerald should be thinking about calling his lawyer.
By far the best account of the trial and its fallout was Mark Steyn’s near-daily blog posts for Maclean’s, the distinguished Canadian weekly. As Steyn shows, the case has implications far beyond the fate of Conrad Black. At its core are disturbing questions about recent perversions of U.S. judicial procedure. In an important reflection from July 22, 2007, Steyn enumerates 6 areas where the U.S. justice system would benefit from reform:
1) An end to the near universal reliance on plea bargains, a feature unknown to most other countries in the Common Law tradition. This assures that a convicted man is doubly penalized, first for the crime and second for insisting on his right to trial by jury. The principal casualty of this plea-coppers’ parade is justice itself: for when two men commit the same act but the first is jailed for the rest of his life and dies in prison while the second does six months of golf therapy and community theatre on a British Columbia farm and then resumes his business career, the one thing that can be said with certainty is that such an outcome is unjust.
2) An end to the reliance on technical charges such as “mail fraud” and “wire fraud”, whereby you’re convicted not for the crime itself but for sending a letter or authorizing a bank transfer in the course of said crime. This gives a peculiar dynamic to the presentation of the evidence: the jury spends months hearing about vast schemes and elaborate conspiracies but in the end is asked to rule only on one narrow UPS delivery or faxed letter, the sending of which is not in dispute, only the characterization thereof. If the non-competes are fraudulent, prosecute the fraud, not the mailing of a memo to Jim Thompson while he’s on vacation at Claridge’s in London.
3) An end to the [legal] process advantages American prosecutors have accumulated over the years—such as the ability to seize a defendant’s funds and assets and deprive him of the means to hire good lawyers and rebut the charges. Or to take another example: Unlike the Crown in Commonwealth countries, in closing arguments to the jury the US government gets to go first and–after a response from the defence—last. This is an offence against the presumptions of English law: The prosecutor makes his accusation, the accused answers them. Every civilized legal system allows the defendant the last word.
4) An end to countless counts. In this case, Conrad Black was charged originally with 14 crimes. That tends, through sheer weight of numbers, to favour a conviction on some counts and acquittal on others as being a kind of “moderate” “considered” “judicious” “compromise” that reasonable persons can all agree on. In other words, piling up the counts hands a huge advantage to the government. In this case, one of the 14 counts was dropped halfway through the trial, and another nine the jury acquitted Conrad on. But the four of the original 14 on which he was convicted are enough. One alone would be sufficient to ruin his life. This is the very definition of prosecutorial excess. Why not bring 20 charges or 30 or 45? After all, the odds of being acquitted of all 45 are much lower than those of being acquitted of 30 or 40.
5) An end to statute creep. One of the ugliest features of American justice is the way that laws designed to address very particular situations are allowed to metastasize and be applied to anything a prosecutor fancies. The RICO statute [i.e., the Racketeer Influenced and Corrupt Organizations Act] was supposed to be for mobsters and racketeers. Conrad Black is not a racketeer but he was nevertheless charged with racketeering. And, while the prosecutorial abuse of RICO is nothing new, the abuse of the “obstruction of justice” statutes in this case are unprecedented. Hitherto, the only obstruction charges that could be brought in regards to extra-territorial actions involved witness-tampering. In that security video at 10 Toronto Street, Conrad Black may be doing all manner of things, but he’s not tampering with any witnesses. Nevertheless, a hitherto narrowly defined statute has now been massively expanded to enable prosecutors to characterize actions by foreign nationals on foreign soil in a way never contemplated by the relevant legislation. Statute creep is repugnant and should be stopped.
6) An end to de facto double jeopardy. Conrad Black is likely to wind up back in court to go through all the stuff he’s been acquitted of one mo’ time, this time in a Securities and Exchange Commission case. That would be a civil case, not a criminal one, and the US Attorney insists that the SEC is an entirely separate body. Oh, come on. The US Attorney and the SEC are both agencies of the US Government. They work in synchronicity. It’s not the same as Nicole Brown’s family suing OJ after the state’s murder case flopped. In this instance, two arms of the same organization are bringing separate cases on exactly the same matters. That’s double jeopardy—or, in fact, given the zealousness of the SEC, triple and quadruple jeopardy.
As Steyn observes, Conrad Black would have benefitted from such reforms, but then so would your run-of-the-mill alleged malefactor—“which is,” Steyn notes, “as it should be: Justice is supposed to be blind. But this system is blind drunk on its own power.” That’s where the example of chaps like Saint-Just come in: want to know what happens when the judiciary waxes moralistic and arrogates to itself ever increasing prerogatives? Take a look at the career of Louis Antoine Léon de Saint-Just. What Conrad Black got was not justice but Revolutionary justice.