Thursday, June 24, 2010

Black, Skilling get huge break (maybe Blago too)

I have always said that everyone -- even the most powerful and hated -- should get a fair trial.   So today's news is quite interesting.   And it involves a subject I have brought up before -- the Baron of Crossharbour.

In two major decisions today, the US Supreme Court has said a very contentious law -- the so called "honest services" provision of a law regarding wire and mail fraud -- was misinterpreted by the trial courts that convicted Conrad Black, Jeffrey Skilling and their cohorts at Hollinger and Enron respectively.    For Black, three of his four convictions were quashed and the fourth has been remanded back to Chicago for re- sentencing.   For Skilling, he might either get a re-sentencing hearing or even a new trial.

The law -- twenty-eight words added in 1988 to 18 U.S.C. §1346 -- says: "For the purposes of this chapter, the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."

Writing for the court, Justice Ruth Bader Ginsburg said that properly constructed the law was only supposed to deter bribery or kickbacks.   To go any broader would make the law too vague and therefore unconstitutional.   In Black's case, it should be clear, neither bribery or kickbacking was alleged, only that his conduct led to Hollinger's shareholders being deprived of fair value for their stocks.

In Skilling's case, the court ruled for him 9-0 on the main constitutional question (with three -- Scalia, Thomas and Kennedy JJ. -- voting to strike down the law all together) but also against him 6-3 (in a separate vote) on his claim that the extensive pre-trial publicity surrounding the collapse of Enron prejudiced his right to a fair trial (interestingly Stevens, Breyer and Sotomayor JJ. said he could not have possibly have gotten a fair trial in Houston and at the very least the venue should have been moved from Houston, Texas, the scene of the alleged crime).   Black's case was simpler, and the vote was also 9-0 in his favour (with the same three conservative justices voting to strike down).

In a third, unrelated case, the court also ruled in favour of an Alaska state legislator named Bruce Weyhrauch who claimed that the "honest services" law was misapplied when he failed to disclose a conflict of interest -- namely that he did not say he solicited business from a company with business before the legislature.   The court said simply that the federal law could not be applied if no state case calling him out on any alleged corruption had been filed or prosecuted.

This may or may not be good news for disgraced former Illinois governor Rod Blagojevich who stands accused of selling President Obama's vacant Senate seat.   The feds already hedged their bets and amended their charges on the presumption that today's court ruling might go the way it did (Blago also has filed a "void for vagueness" claim) but if Rod is grasping at straws he got a huge lifeline.   At best, the honest services charges could get tossed but he still faces serious charges ... although possibly now with less jail time if convicted.

What does it all mean for Black?    Well, obviously, Conrad just might get a reduced sentence, even time served.   It's going to be very interesting to see what Judge Amy St. Eve does when this matter is returned to her docket probably sometime in August.   Back at the original sentencing, as I wrote, she was clearly exasperated and even upset that the Lord had, in her view, put so much on the line.    And many people are still waiting for an adequate explanation of what he was doing when he and / or his colleagues "borrowed" files from his Toronto office and was caught on tape doing so.   What was he taking?   What needed to be copied?   Was there anything shred?

Upon remand, Judge St. Eve has to ask Black these and other very tough questions.   If he is entitled to a lesser sentence he needs to prove it.  The scales of justice may have tipped in his favour today, but it's up to him to pull it all the way.

Far as I'm concerned, though, he still hasn't offered the major proof of all -- an explanation as to why he's entitled to get back the Canadian citizenship he forsake.   He should go to the back of the line and apply for landed status then wait three years, just like every other immigrant.

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