Conrad Black leaves his bail hearing in Chicago on Friday after his release from prison on a $2-million bond.John Gress/REUTERS
Ever since he was convicted of fraud in 2007, Conrad Black has insisted that his convictions will be overturned. Now, he is likely a month away from finding out whether he was right.
A U.S. federal appeal court panel reviewing Lord Black's case has ordered lawyers to present written briefs by Aug. 16. The panel of three judges is not expected to hear oral arguments in the case, meaning they could issue a ruling any time after that date.
The court is expected to rule quickly, and many legal experts expect the bulk of the charges will be vacated.
The panel is led by judge Richard Posner, something of a maverick but also considered one of the top appellate judges in the United States. Judge Posner, 71, is known for his rapid rulings and colourful opinions on almost any topic. He has written more than 168 articles and 53 books, his latest titled How Judges Think. He also co-authors a blog with Nobel Prize winning economist Gary Becker and their most recent topics have included media coverage of the BP oil spill, the merits of financial reform legislation and whether unemployment benefits should be extended.
Judge Posner has been tough on Lord Black before. In 2008, he wrote the panel's decision rejecting Lord Black's first appeal, calling some of the arguments raised "ridiculous" and adding that there was "compelling evidence" of a "conventional fraud."
But now that the U.S. Supreme Court has narrowed the definition of the fraud statute, and ruled that based on its new definition the jury in Lord Black's case received improper instructions, Judge Posner likely has no choice but to reverse the fraud charges, experts say.
Judge Posner "is a very colourful judge, very smart judge, highly respected," said Andrew Stoltman, a Chicago lawyer who has followed Lord Black's case. "But the Supreme Court couldn't have been more clear in their ruling so I think he's going to follow the ruling real closely and I think Mr. Black is going to have a very good day."
Lord Black might not win a total victory. Even if the appeal court throws out the fraud charges, Lord Black has also been convicted of obstruction of justice relating to the removal of boxes from his Toronto office in 2005 while a criminal probe was under way. The Supreme Court did not directly address that charge, leaving it to the appeal court to decide. Lord Black received 6½ years in jail time, mostly related to the obstruction charge.
"Judge Posner is one of the most respected jurists in the U.S. appellate system, if anyone can navigate this artfully it is him," said Jacob Frenkel, a leading white-collar lawyer based in Washington, D.C. Mr. Frenkel also expects the fraud charges to be vacated but he doubts the obstruction charge will go as well. He said because Judge Posner was so "forceful" in his initial ruling, "I would be surprised to see the panel reverse on obstruction of justice."
Chicago lawyer Hugh Totten agreed and said the evidence used to convict Lord Black on obstruction, which included video tapes of him removing the boxes, differed from the evidence used on the fraud charges. "I'm pretty sure that the jury could have found obstruction and not fraud," he said.
He and others doubt Lord Black will return to jail and expect him to be released on time served.
If the appeal court vacates the fraud charges, it will be up to federal prosecutors to decide whether to re-try Lord Black and three other defendants. That decision could take several months and prosecutors could push Lord Black and others to plead guilty to a lesser charge to avoid a trial. But many lawyers doubt the case will be pursued. "Nobody in Chicago cares about the Conrad Black case," Mr. Totten said.
Once Lord Black's criminal case has run its course, he faces additional charges from the U.S. Securities and Exchange Commission and the Internal Revenue Agency.
The SEC charged Lord Black and his long time deputy David Radler in 2004 of engaging in a "fraudulent and deceptive scheme" to pocket millions of dollars of payments that were not disclosed to shareholders. Mr. Radler, who pleaded guilty to one fraud charge in the criminal case, settled with the SEC in 2007, paying $28.7-million (U.S.), one of the largest individual settlements ever.
Typically the SEC would seek a judgment from a U.S. court if targets are convicted in a related criminal case. But if Lord Black's fraud charges are thrown out, legal experts said they would expect the SEC to prosecute its civil case in court.
The burden of proof in civil cases is lower than those in criminal charges and Mr. Frenkel, a former SEC lawyer, said the regulator would want to pursue its charges as part of its market enforcement mandate.
"The SEC absolutely and unequivocally goes forward with its case against Black," he said.
Paul Waldie