Denied: Posner’s wry prose more or less sends Black to jail until 2013

Yesterday, in 16 pages of tightly woven legal reasoning, Richard Posner more or less put paid to whatever faint hope remained that Conrad Black will see a free day anytime before 2013. Moreover, he ensures that, barring a judicial miracle, Black’s co-conspirators Jack Boultbee and Peter Atkinson will join him as guests of the United States on or about July 10. Posner is among the most estimable minds on the American bench, and his decision reflects its author’s eclectic, sometimes eccentric, but always razor sharp intellect. The prose possessed a sniffily dismissive and wry air. In explaining the nub of Black’s fraudulent endeavours Posner writes:

Hollinger had a subsidiary called APC, which owned a number of newspapers that it was in the process of selling. When it had only one left—a weekly community newspaper in Mammoth Lake, California (population 7,093 in 2000, the year before the fraud)—defendant Kipnis, Hollinger’s general counsel, prepared and signed on behalf of APC an agreement to pay the other defendants, plus David Radler, another Hollinger executive and a major shareholder in Ravelston, a total of $5.5 million in exchange for their promising not to compete with APC for three years after they stopped working for Hollinger. The money was paid… That Black and the others would start a newspaper in Mammoth Lake to compete with APC’s tiny newspaper there was ridiculous.

Later, in shooting down the defendants’ argument that the crime was essentially victimless (because the non-competes were management fees re-characterized to take advantage of a Canadian tax holiday), Posner writes that:

They are making a no harm–no foul argument, and such arguments usually fare badly in criminal cases. Suppose your employer owes you $100 but balks at paying, so you help yourself to the money from the cash register. That is theft…even though if the employer really owes you the money you have not harmed him. You are punishable because you are not entitled to take the law into your own hands.

Harmlessness is rarely a defence to a criminal charge; if you embezzle money from your employer and replace it (with interest!) before the embezzlement is detected, you still are guilty of embezzlement.

Later still, giving free rein to what Posner himself terms his undomesticated attitude to judicial propriety, he prefaced his dismissal of the defendants’ arguments concerning the so-called “ostrich instruction” with a whimsical defence of the bird’s honour in the face of certain legends concerning its instinctive behaviour.

The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego… (“When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible”). It is too late, however, to correct this injustice.

This last line is classic Posner arch, and is full of portent. You can almost hear the judge’s high-pitched wheeze pushing it out with a smidgen of derisive laughter for good measure. Its intended audience might well fail to see the humour.

One odd footnote: former prosecutor Eric Sussman—whose relationship with certain members of the press corps during the trial was, how to say, collegial—was all over several stories yesterday, cheerleading the decision. At one point, he personally chastised Black himself, telling The Globe and Mail:

I think at some point in time Mr. Black needs to take a hard look in the mirror and ask who it is that really doesn’t understand the conduct that took place in this case…You’ve got 16 people who have taken a look at the facts and the law in a very detailed and time-consuming way, and they have all reached the same conclusion, which is that he stole money from this company and he tried to obstruct the investigation.

All of which is fair comment—after all, his Lordship took liberties with Sussman et al., calling them “pygmies” and “Nazis.” Thing is, in the months since Black’s conviction, sentencing and incarceration, Sussman crossed the street. He now heads up the white-collar litigation sector at Chicago firm Kaye Scholer. All that righteousness on behalf of the government might lead some to question his loyalties.

• 07-4080: USA v. Black, Conrad [Seventh Circuit Court of Appeals]• Conrad Black fraud conviction is upheld [The Independent] • Appeal court says Black must remain in US jail [The Guardian]• Black’s Conviction for Theft From Hollinger Affirmed [Bloomberg]• Appeal court rejects all arguments for Black [Globe and Mail]• Parental Warning: Obscene David Broder video follows [Harper’s]• Black has one card left to play [Toronto Star]• Black loses appeals court ‘long shot’ [National Post] • Conrad Black’s Sentence Upheld; 7th Circuit OKs Ostrich Instruction [Wall Street Journal]