 |
| ABOUT US | PRACTICE GROUPS | LOCATIONS | CONTACTS |
|
December 11, 2007
And on to the appeal Experts say Conrad Black has a good chance of reducing his sentence-although some warn there's a risk of increasing it By Cathy Gulli The steadfast assertion of Conrad Black that he will be vindicated makes the upcoming appeal of his convictions all the more fascinating. On Monday, Judge Amy St. Eve sentenced him to six-and-a-half years in prison and fined him US$125,000 for obstruction of justice and mail fraud. Moments later, Black's attorney of appeal, Andrew L. Frey, whose skills as a ferocious orator from New York might rival those of his client, insisted of Black: "He's a fighter. He expects with some reason that there's a good chance this could be overturned." And then, "He definitely believes it." Whether the Seventh Circuit Court of Appeals in Chicago believes it won't be known for at least another year, say observers. Within 10 days Black's lawyers will file a notice of appeal, and then a brief summarizing its arguments against the convictions. Then government prosecutors will prepare a counter-brief. Finally, Black's team may contest the counter-brief with another brief. After that, quipped Frey, who is a partner at Mayer Brown law firm, "it's in the lap of the gods how long it takes." Peter Henning, a law professor at Wayne State University in Detroit and editor of a white-collar crime blog, predicts that after reviewing the written statements, the court will order oral arguments, and then take three-to-five months to make a final decision on whether to overturn any or all of Black's convictions. But Henning believes that there is a possibility this appeal could be won. "This was not a slam-dunk case," he says. "The vast majority of convictions are upheld, more than 90 per cent. There is a chance this case is in that 10 per cent." To reach its decision, the court of appeals will likely hear two main arguments from the defence. For starters, they'll claim that there was insufficient evidence to convict Black. "If the court agrees, they open the jail doors and he walks," says Douglas C. McNabb, a senior principal at McNabb Associates in Washington, D.C. The focus will likely be on the mail fraud charges, which are based on ambiguous or complex documents and circumstances. That means more opportunity to have the charges overturned: "If one mail fraud charge goes down, they'll all go down because they are intertwined," says Henning. If, on the other hand, the defence focuses on having the obstruction conviction overturned, Henning says, they could have a tougher time proving insufficient evidence. Since the jury at least partly based their conviction on a video of Black removing boxes from his Toronto office despite a court order prohibiting this, Henning says the appeals court won't even bother looking at the tape again. "The jury saw and assessed the evidence," he explains, and the court of appeals gives favour to the jury's decision. "Essentially, the defence starts one step in the hole because it's harder for them to overcome the jury's verdict." The second argument the court of appeals will probably hear will be that a specific order the judge gave to the jury to determine a verdict should never have been issued. Called the "ostrich instruction," it compels a jury to find a person guilty if he knew a crime was occurring but deliberately ignored it. Frey said Monday that "this wasn't a case about willful blindness", and he believes the instruction tends to convict a person "when it otherwise shouldn't." The order is often challenged in appeal, says Henning, but historically the Seventh Circuit has been favourable to it. McNabb says that if the defence succeeds in attacking the jury's instruction, "that negates the jury's verdict." After Monday's sentencing, Frey spoke at length about the defence's belief that Black lacked the intent needed to convict him in the first place, and insisted that this would be at the centre of its appeal. He said no theft occurred in relation to American Publishing Company money because there was evidence that executives had it coming to them. Similarly, Frey argued that there was no real evidence that Black understood that he was not entitled to supplemental payments. "In each case, the case for criminal intent and any receipt of money or removal of boxes is not there, in our opinion," Frey concluded. The goal, of course, is to have all convictions overturned, and Black's sentence lifted. If, however, just the obstruction charge is thrown out, he could serve as few as 63 months, rather than the 78 Black currently faces, says McNabb. If only the fraud charges are overturned, then there will probably be a remand for re-sentencing-and Black could wind up in jail for only a year and a half, adds Henning. In the event that none of the convictions are tossed, Black could still apply for appeal to the Supreme Court. But McNabb says that the chances of a hearing would be less than five per cent. "The issues are not that unique to draw their attention, and the charges just aren't that interesting," adds Henning. In which case, "the ball game is over," says McNabb. Of course, there is one scenario far worse than that, says Douglas Berman, a law professor at Ohio State University and federal sentencing expert. The government prosecution could launch a cross appeal against Black, which if won, could result in an even longer and harsher sentence. The judge's generosity in sentencing (she used 2000 guidelines rather than 2007 guidelines) and bail (Black is free until Mar. 3, 2008) could aggravate the government just enough to provoke such a situation. The cross appeal would be heard alongside the appeal, and if it were successful "then six and a half years goes from ceiling to floor," Berman speculates. "[Black] could be looking at a 19-year sentence." While cross appeals are rare, Berman says it is plausible given the prosecution's aggressive push throughout the trial to have Black receive the severest penalties. "If I was Lord Black's lawyer I'd say be careful before you celebrate," says Berman, before adding, "Though I don't think he's celebrating." To be sure, Black's appeal is at least partly motivated by a desire to spend fewer or no years in prison rather than more. As Frey put it, "For a 63 year old man, six and a half years is a lot of time-especially if you feel you haven't committed a crime." | |