could not expunge an enhanced sentence.[30]
Incredibly, the guidelines also permit prosecutors to rely on acquitted or uncharged conduct by a defendant, even for a charge as a serious murder.[31] As Greenspan observed, “If George Orwell were alive today he’d be hitting his forehead and wondering why he didn’t think of that one.” Genson described the unprincipled practice of artificially resuscitating a jury’s not-guilty verdicts as “disgraceful.” For instance, in a situation where a defendant charged with two separate sales of cocaine, one involving a single ounce and the other involving three kilos, a conviction on the lesser charge for the one-ounce sale permits the prosecutor to invite the judge to find on a preponderance of evidence that the defendant was involved in the three-kilo sale. The jury’s verdict becomes moot at that point and any sense of double jeopardy or due process is discarded.
If any Canadian prosecutor were to make a similar submission, he would be ordered to return to law school to relearn the basic rules of fairness and procedure. In America such a shameful practice of “acquitted conduct sentencing enhancement” is de rigueur, and the prosecutors in the Conrad Black trial eagerly attempted to hitch their cart to it.
More than 90 percent of criminal cases end in guilty pleas, magnifying the significance of the sentencing process.[32] Patricia Holmes, who is in the unique position of having been both an assistant United States attorney and a judge before becoming a defence lawyer, offered her opinion that the prosecutors just don’t lose. That is the justice system in America. It is a “tyrannical” system weighted heavily in favour of the prosecution, according to the former president of the NACDL, and it is left to the prosecutor or judge to exercise moderation.
It is tempting for prosecutors to unfairly exploit the leverage and power placed in their hands. Ron Safer made reference to its frightening influence in the Black trial in his closing address:
Pressure from the government is a truly awesome thing … You saw the response that several witnesses in this case had to that enormous pressure that the government can apply. [For] some witnesses it was dramatic … For David Radler, at a certain point he started confessing to everything the government asked him about, even though he had vehemently and vigorously denied these same exact points time and time and time again.
In Canada the trial of Conrad Black would have been a bench or judge alone trial. Eddie Greenspan suggested that the decision in those circumstances would have been a “slam dunk.” He believed that Judge St. Eve would have acquitted the defendants of all the charges they faced.
There are several reasons that the case was well suited to be tried by a judge sitting alone. Firstly, none of the defendants testified, and there is always a genuine concern that a jury will interpret that as a conspiracy of silence.
Secondly, the premise of the defence was that the vast millions of dollars of non-competition payments the defendants received were lawful and approved by the audit committee, but ultimately the defence conceded that no direct economic benefit to the shareholders resulted. That is not an attractive argument to make to a jury.
The final reason that a judge should have heard the trial was the incredible zeitgeist that lingered from the high-profile corporate fraud trials in America such as Enron, Tyco, and WorldCom. A new crime wave shook the public’s faith in corporate America and Wall Street, and business leaders became the new fodder for the prosecution mill as attitudes towards corporate governance hardened. The criminal charge of racketeering was being applied without discretion against corporate defendants.
A bench trial in America, however, requires the government’s consent. I was advised that in a high-profile case like the Black trial, consent would never be given because it would improve the defendant’s chances of winning.
Does anyone care that the American system is slanted in favour of the prosecution? Politicians boost the vast powers invested in American prosecutors. Judges are elected on get-tough-on-crime platforms exploiting a dire fear among Americans that the nation ever be considered soft on crime.[33] Prisoners are inhibited from using DNA evidence to support wrongful convictions while voters continue to reward prosecutors who are well known for locking up innocent people.[34] Congressional hearings are ordered for pressing issues like the use of steroids by professional athletes but never for the nation’s plague of miscarriages of justice.
Segments of the media openly favour the side of the prosecutor and vilify the presumption of innocence.[35] The most striking example is Nancy Grace[36] with her popular nightly show on HLN, an affiliate of CNN. She has been appropriately been described as a former prosecutor “turned broadcast judge-and-jury.”
“Working with a contingent of experts who have all the independence of a crew of trained seals, Ms. Grace races toward judgment, heedlessly ignoring nuance and evidence on her way to finding guilt.”[37]
Nancy Grace, however, isn’t the media’s sole offender. During the Michael Jackson trial, Tim Rutten, a respected columnist with the Los Angeles Times, commented on the secession by an entire segment of the news media from mainstream American journalism. He cited most of the commentator/personalities on FOX News (with the notable exception of Greta Van Susteren), the prime-time segment of CNN Headline News, and Court TV. He added the following: “These operations no longer feel constrained by even the minimal requirements of fairness, balance or dispassion required to practice American-style journalism. Instead, they operate as an apologetic cheering section for the prosecution.”[38]
It was Conrad Black’s naïve assumption that he could successfully navigate the turbulent stream of American justice and emerge unscathed with his liberty intact. He will have the experience of three years in a Florida federal prison to reflect on his grand miscalculation. David Radler, who pleaded guilty and in Black’s words “was exposed as a double-dealing cheat and liar and perjurer,” served about nine months of his twenty-nine month prison sentence before he was paroled in Canada.
Conrad Black’s case, however, did help to expose the systemic failings of a severely flawed U.S. justice system. Despite the obstacles, only fragments of the government’s original case against him and his three co-defendants remained. Ron Safer described the final result as a huge defeat for the government given where the case started. Black was left in the end with a single fraud conviction and an additional conviction for obstruction of justice for a crime committed wholly under Canadian jurisdiction. He overcame 99 percent of the total fraud alleged in the indictment. His share of payment in the proven fraud amounted to of $285,000. Black overcame a tilted prosecution that included the testimony of a watchtower audit committee that portrayed itself as the cast of MTV’s Jersey Shore.
Eddie Greenspan described “everyone talking in terms of forty years” if Conrad Black was convicted of every charge he faced. He certainly would have died in prison. Greenspan wryly observed that “we now know that there were no witches in Salem and there was no corporate kleptocracy.”
Barbara Amiel being attended to by court officials at Conrad Black’s resentencing hearing after reacting to the judge’s pronouncement of her husband’s sentence.
Sketch by Cheryl Cook
For Conrad Black, the final chapter in his case has not been written. As Jacob Frenkel concluded, Black will not be content with such an outcome. “He will go to every president in his lifetime until he gets a pardon.”
Titan on Trial
The Case Against Conrad Black
On the eve of his criminal trial, Conrad Black was staring down a crushing blow to the media empire he had devoted forty years
