TORONTO – Petitioners who gain a review by the U.S. Supreme Court win the majority of their cases, giving jailed businessman Conrad Black reason to be optimistic as the top court prepares to review his fraud conviction, according to one legal expert.
“More often than not, the petitioner wins and that’s probably almost three-quarters of the time,” said Steve Kinnaird, co-chair of the appellate and Supreme Court practice at Washington, D.C., law firm Paul Hastings.
“You can never really firmly predict, but I would say the betting money in the abstract is always on the petitioner.”
The Supreme Court agreed Monday to review the fraud conviction that helped put Lord Black of Crossharbour behind bars in 2007.
While that offers up some hope that Black might one day be exonerated of some charges, the review doesn’t necessarily dangle a “Get Out of Jail Free” card in front of him – the top U.S. court cannot overturn convictions on its own but can send them back to a lower court, which could then order a new trial.
And even if Black’s fraud convictions were overturned, his obstruction of justice conviction could stay in place, meaning he would stay in jail on those charges.
The top court’s decision to review the convictions of Black and two of his former associates, convicted for their role in an alleged scheme to defraud shareholders of the Hollinger International media company, came as a surprise to many in the legal world.
“Supreme Court review is rarely granted, so the fact that it was granted is significant in and of itself,” said Kirby Behre, a Washington lawyer and former federal prosecutor.
“It suggests strongly that the Supreme Court believes that there’s a genuine issue relating to the case that must be resolved and generally it’s an issue that has been the subject of disagreement by lower courts of appeal.”
Usually when the top court agrees to review a case, it is in fact reviewing a broader point of law on which lower courts have failed to reach a consensus.
At issue in Black’s case is the right to honest services – a concept developed in the 1970s to convict corrupt politicians who were seen as defrauding the public of their “honest services” as public servants – and whether it should apply to private conduct.
“The courts of appeals are hopelessly divided on the application of (honest services) to purely private conduct,” the Supreme Court says in its decision to review Black’s case.
The question to be reviewed is whether the concept of honest services “may be applied in a purely private setting irrespective of whether the defendant’s conduct risked any foreseeable economic harm to the putative victim.”
Kinnaird said the issue is not whether the facts presented in Black’s case were accurate, but rather a broader question of how the law should be applied in this case and similar ones in the future.
“There are a very few cases that have intrinsic importance, but it’s really determined by the state of the law and whether it needs the court intervention to be clarified,” he said.
The convictions were in relation to US$5.5 million in payments that Black, Mark Kipnis and John Boultbee received from a subsidiary of Hollinger, which Black founded.
U.S. prosecutors alleged Black and three other executives orchestrated a scheme to pocket about $60 million in non-compete payments negotiated with buyers when Hollinger sold newspaper assets – money that should have gone to shareholders.
The so-called “non-compete payments” – stemming from the sale of Canadian papers to Winnipeg-based CanWest Global Communications Corp. (TSX:CGS) and U.S. papers to several U.S. buyers in 2000 – were at the heart of the government’s case.
The Montreal-born Black, who was forced to renounce his Canadian citizenship in 2001 in order to accept an invitation to join the British House of Lords, was convicted on three counts of mail fraud and one count of obstruction of justice. He has already served more than a year of his 6 1/2-year prison sentence, and is currently being held at a federal facility in Coleman, Fla.