Court of Appeals judge for more than a quarter of a century. In some quarters of the legal community, he was revered. Albert Alschuler, a criminal law professor at Northwestern University School of Law, described Posner’s standing as the most prominent legal scholar of the past sixty years. He was also the most prominent judge in America not sitting on the U.S. Supreme Court.
Judge Posner was the author of a number of wide-ranging books on law, economics, and literature, including one book devoted to the regulation of sexuality. It was motivated by his “belated discovery that judges know next to nothing about sex beyond their own personal experience, which is limited.”[7]
The hearing before the Court of Appeals represented the second appeal for Conrad Black before Judge Posner. The first round was marked by a series of caustic exchanges during oral argument between Posner and Black’s appeal counsel, Andrew Frey. The ultimate dressing down came with Judge Posner’s claim that a portion of the evidence had to do with “pretty naked fraud.” Judge Posner also exhibited a palpable disdain for Conrad Black. The reasons were unclear, but Posner had once disparaged Conrad Black in one of his judgments, noting that he wasn’t as well known or as colourful a figure as the former governor of the state of Illinois, Rod Blagojevich, who had been accused of participating in a political corruption crime spree.[8] Judge Posner’s characterization of Black’s colourful status was debatable. Blagojevich hadn’t even rated as one of the famous faces on the mounted hallway board. His place, however, was secure for another board in the courthouse highlighting the fact that six Illinois governors had been indicted during their administration or after. Even a Lord couldn’t qualify for that board.
The U.S. prosecutors have the ability to poison the wells with a media trial; they have huge procedural advantages in delays, notice periods, and their ability to discourage the appearance of defense witnesses by their ability to expand the range of questions where appearance is voluntary. The great majority of judges are former prosecutors, the prosecutors speak last to the jury, and the Fifth, Sixth, and Eighth Amendment rights of due process, the grand jury as a guarantee against capricious or malicious prosecution, of no seizure of property without just compensation, of prompt justice, an impartial jury, access to counsel (of choice), and reasonable bail, have all been put to the shredder, and I didn’t receive any of it.
— Conrad Black in an email to the author, May 23, 2011
Conrad Black with his lawyers Miguel Estrada, Carolyn Gurland, and David Debold at his resentencing hearing.
Sketch by Cheryl Cook
American justice is very different than the justice meted out at the Old Bailey or in a Canadian courtroom. Justice isn’t blind in America. It perennially favours the side of the government. It is also a system of justice that is desperately in need of reform. The current U.S. Attorney General, Eric Holder, acknowledged that “too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system.”[9]
The unfairness is evidenced by the rampant over-criminalization that infests the American justice system. There are over four thousand federal crimes with thousands more regulatory provisions that allow for criminal sanctions. A significant number of federal crimes lack any meaningful requirement for the culpable mental state of criminal intent.[10] According to Jim Levine, the president of the National Association of Criminal Defense Lawyers (NACDL), the largest group of criminal lawyers in America, the proliferation of criminal sanctions has led to profound and disturbing consequences:
The hallmarks of enforcing this monstrous criminal code include a backlogged judiciary, overflowing prisons, and the incarceration of innocent individuals who plead guilty not because they actually are, but because exercising this constitutional right is all too risky. This enforcement scheme is inefficient, ineffective and, of course, at tremendous taxpayer expense.[11]
The honest services fraud statute, one of the two alternative theories of mail fraud that were presented to the jury at Conrad Black’s trial, was a prime example of a legal code that had become “a vast, vague, and unpredictable invitation to selective enforcement.”[12] This over-reaching fraud statute that was zealously relied upon by government prosecutors for over two decades failed to limit the key phrase in the statute of “intangible right of honest services.” Gerald Lefcourt, a leading white-collar defence lawyer from New York, outlined the law’s potential for abuse:
With the power that prosecutors already had with unlimited resources and leverage, the addition of the impossible to define, intangible ‘honest services’ fraud statute made prosecutors all powerful and god-like with the ability to indict or threaten anyone who remotely did something unappealing or unethical. It was the kind of law that totalitarian governments would embrace, enabling them to put anyone in their cross hairs at any time.
The introduction of honest services by prosecutors in Conrad Black’s case was the catalyst to his successful appeal in the Supreme Court. The honest services law widely expanded the roadmap for the jury to convict. During the oral argument at Black’s appeal, one of the Supreme Court justices, Steven Breyer, stated that people sometimes joke that it would be simpler to have only one criminal law: “It is a crime to do wrong.” Sometimes adding, “in the opinion of the Attorney General.”
America is the empire of illusion where many of its inhabitants cling to the reassuring message that they live in the greatest nation on earth, a mythical narrative that is given the aura of uncontested truth.[13] An extension of this insular belief is that the United States, a country that continues to harbour the odious spectacle of the death penalty,[14] is endowed with a superior system of justice. It is a facile conclusion.
America is a nation where currently about one in every hundred of its inhabitants is behind the bars of a prison cell. The “rough justice” in America has resulted in overcrowded prisons, and never in the civilized world have so many been locked up for so little.[15] With less than 5 percent of the global population, the United States has almost one quarter of the world’s prisoners. Canada’s incarceration rate, by contrast, is less than one-sixth of the U.S. rate, despite sharing a relatively similar economic and political system.[16] The U.S. Supreme Court recently ruled that the state of California had to reduce the disturbing pattern of overcrowding in its prisons or, alternatively, tens of thousands of inmates could be released. As one commentator noted, “a majority of the justices decided that when a state approaches Stalinist standards of barbarity, something has to be done.”[17]
In his majority opinion, Justice Anthony Kennedy cited the unsanitary and unsafe prison overcrowding: “To incarcerate, society takes from prisoners the means to provide for their own needs … A prison’s failure to provide sustenance for inmates may actually produce physical torture or a lingering death.”[18]
The Supreme Court of the United States cited Canada as a suitable model to emulate for prison reform. Statistics demonstrated that the prison population of Canada had been lowered without sacrificing public safety.[19]
Ed Genson spoke candidly of devoting his professional life to a system of justice in Midwestern America that was very heavily weighted in favour of the prosecution. It is essentially a terrible system, he acknowledged, that is pro-prosecution from the introduction of the indictment to the conclusion of the case. His experience in the Conrad Black trial exposed him to the Canadian justice system for the first time. Canada was an “eye-opener” for him. “You don’t have more crime in Canada,” he shared with me. “It can’t be that pro-prosecution rules in my country are beneficial.”
Patricia Holmes, one of Mark Kipnis’s lawyers, vividly described the injustice of the guilty verdicts against her client as something that “makes me hurt.” She pointed to the prosecutors in the case as overzealous.
