It ain't over till it's over. On July 20, 2007 the Free Press published a column under my byline, headlined, Don't count Conrad out. The main thrust of the article was that a populist jury convicted Conrad Black because he was rich, flaunted his wealth, and was arrogant.
He had been tried for 13 offences and had been acquitted on nine. The prosecution expressed satisfaction with the verdict, thereby admitting that many of the charges had been pursued merely to create prejudice of volume rather than a real conviction of guilt.
The Supreme Court of the United States has now identified error with respect to three of the charges and referred them back to the Court of Appeal. Reasons for the referral clearly put the prosecution in a very weak position and the chances are that Black will be acquitted. This would mean that Black will have been acquitted of 12 of the 13 charges of which he had been accused. His lawyers have indicated that the remaining charge will also be attacked on further appeal.
I guess the long and short of it is I am saying "I told you so."
Although the Supreme Court did not reverse the convictions, which were referred back to the Court of Appeal, the reasons given by the Court clearly tip the balance in favour of Black being acquitted. If he is acquitted the only remaining conviction will be that of obstruction of justice. Ironically this charge relates to conduct of Black which occurred after the facts which form the basis of the fraud and mail fraud charges. If he does not upset the obstruction conviction, Black will have been held criminally responsible for acts which have nothing to do with what gave rise to a criminal investigation in the first place.
Black was under attack because he allegedly cheated the minority shareholders of a company which he controlled by various devices, the main one being that he negotiated monies payable to himself for non-competition clauses which had not been demanded by the purchasers.
If Black had no right to negotiate these clauses it would certainly give those alleged to have been cheated the right to take civil action against him. But if such actions have been taken they do not appear to have generated any high-profile news.
The obstruction conviction is based on the fact that Black removed files from his office, thereby ignoring a court order that he not do so.
Accordingly, a United States court convicted a man for a crime that was alleged to be a committed in Canada and there is no record of any application having been made to the judge whose order it is alleged was ignored.
Black's lawyers have indicated that this order will also be challenged and they argue that it is unlikely that the jury would have convicted on obstruction alone if they had found him innocent on all of the fraud charges.
His lawyers seem to be making a strong point. If there is no fraud in the first place, obstructing justice would appear to be a highly unusual charge and conviction.
In any event, if Conrad Black is found not guilty on all 12 fraud charges, it would be unreasonable to expect that he would have been sentenced to prison for six years on the obstruction charge alone.
Black's lawyers have indicated that because of the Supreme Court decision they will be reapplying for bail. They would appear to have a strong case for getting Black released. He has already spent a year and a half in prison based on having been convicted of four charges, three of which are already in serious doubt.
It may be that had he been convicted of obstruction alone his term in prison would already have exceeded what would have been a reasonable sentence for a first-offender.
Furthermore, none of the material which Black had removed from his office appears to have had any evidentiary value in the prosecution itself.
But there is even a more dramatic possibility. It is possible, even likely, that ultimately Black will be acquitted on all 13 charges and none of the convictions will stand.
If this happens Black will have been publicly ruined and will have spent all the time which he has been imprisoned without having been found guilty of committing any crimes. To pillory a respectable citizen, a married man, ruin him and subject him to the harshest remedy which our society can inflict, namely the deprivation of liberty, would normally be universally considered as a manifest injustice.
But there will not likely be a public outcry on behalf of Conrad Black. His personal tragedy is unlikely to attract the sympathy to which he would be entitled. The reasons for this lack of public support are likely to be the same reasons that he was convicted in the first place. He was very wealthy. He flaunted his wealth. He was considered to be arrogant.
Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.