Conrad Black's lawyers will make a final pitch to an appeal court in Chicago Wednesday to argue why Lord Black's criminal convictions should be reversed.
The 40-minute hearing is expected to feature some lively exchanges between Lord Black's Washington-based lawyer, Miguel Estrada, and Judge Richard Posner. Mr. Estrada is well-respected in legal circles and has won several cases at the U.S. Supreme Court. Judge Posner is considered one of the top judges in the U.S. and he's known for his colourful commentary on almost any topic. When Lord Black's previous legal team appeared before Judge Posner in 2008, he tore apart most of their arguments and routinely cut them off with a wave of his hand. That isn't likely to happen with Mr. Estrada, who is deferential but rarely gives ground.
For Lord Black, the hearing could be his last attempt to get his convictions for fraud and obstruction of justice reversed. The former media baron has been appealing his case for more than three years.
At first, his chances looked bleak. This same appeal court panel, led by Judge Posner, twice rejected Lord Black's appeals. The judge called some of Lord Black's conduct at his newspaper company, Chicago-based Hollinger International Inc., "ridiculous" and ruled that the evidence in the case "established a conventional fraud, that is, a theft of money or other property from Hollinger by misrepresentation and misleading omissions amounting to fraud."
Unperturbed, Lord Black continued his quest even as he headed to jail in Florida two years ago to begin serving a six-and-a-half-year sentence. His fortunes changed dramatically in June when the U.S. Supreme Court accepted many of Mr. Estrada's arguments and changed the fraud statute by narrowing the definition of the "honest services" section.
That section had been the subject of much debate among lawyers and judges who said it had never been properly defined. It was added to the U.S. fraud statute more than 20 years ago to help prosecutors go after crooked politicians, under the notion they committed fraud by depriving citizens of their "honest services." Prosecutors then began applying it to corporate cases such as Hollinger and Enron Corp. In its decision, the Supreme Court said the section only applies to cases involving bribes and kickbacks. Under that definition, the court added, the section didn't apply in Lord Black's case. The court left it up to the appeal judges in Chicago to decide whether Lord Black's convictions should be reversed.
A key question in Wednesday's hearing will be whether the jury still would have convicted Lord Black and three other former Hollinger executives if the "honest services" clause did not apply.
In court filings, Mr. Estrada argues that "honest services" was a key part of the prosecution's case and that given the Supreme Court's ruling the convictions must be reversed. "Without a doubt," Mr. Estrada argues, "the evidence, the government's arguments and the jury instructions all gave the jurors a way to convict for something that the Supreme Court has ruled was not a crime."
Prosecutors argue their case was built on much more than honest services and the convictions should stand. "The government proved and relied on only one factual theory - the theft of the company's money," prosecutors argue in their filings.
Lord Black, who was released on bail in July pending the appeal court's decision, declined to comment on the hearing other than to say he is "hopeful."