Blogs & Comment

The wages of Black's defiance

Searching for sympathy, some convicts sheepishly acknowledge responsibility for their transgressions and proclaim themselves reformed.

 Conrad Black, former CEO of Hollinger Inc. (Photo: Tim Boyle/Bloomberg/Getty)

Law courts punish people for a variety of reasons, some fair and some misguided. Perhaps hoping to ingratiate themselves with their judge, some convicts sheepishly acknowledge responsibility for their transgressions and proclaim themselves reformed. Others take their lumps in unreadable silence. And a few, like Conrad Black, fire back with caustic ripostes, lambasting their pursuers as unjust wretches or worse.

Examples of Conrad Black’s intransigence abound. One pronouncement made earlier this year should suffice by way of example. “A moron can see today that there were no crimes committed by the defendants in our case,” he said after giving a speech in New York in March. His comment made the papers, and cannot have been made lightly. Such pronouncements are risky while one’s fate remains in the hands of a judge; it’s tough to predict what response they might provoke. After all, at no point during Black’s four-month trial in 2007 did Judge Amy St. Eve expectorate forcefully on the floor and declare, “This case is beneath my dignity to hear. Jury dismissed!” Nor did she meet with incredulity the jurors’ decision to convict Black on three counts of fraud, and one of obstruction of justice—however fervently Black may have desired it.

On June 24th Black paid another installment for his intransigence. He attended the Everett McKinley Dirksen courthouse in downtown Chicago for resentencing. After listening to submissions from prosecutors, Black’s lawyers and Black himself, St. Eve delivered a reduced punishment: 42 months. Barbara Amiel, Black’s wife, collapsed after learning her husband will soon return to a federal institution to sit out the rest of his sentence. (Black has already spent 29 months at the Coleman Federal Correctional Complex in Florida; The venue and date for his resumed incarceration has yet to be determined.) How did Black’s lack of remorse influence this outcome?

To understand that, you’ll need an abbreviated background of this complicated legal odyssey. In July 2007, after a four month trial, Black was convicted of three counts of mail fraud and one of obstruction of justice. He was sentenced the following December. The U.S. federal sentencing process is a point-based system, where the nature of the offences, mitigating factors and other elements are plugged into a sort of mathematical equation to arrive at a numerical “offence level” score. (This system is intended to limit judges’ discretion.) Each score comes with its own range of prescribed punishments—for example, the number of months in prison. Under this system Black forfeited a possible “adjustment” for accepting responsibility for his crimes—at sentencing St. Eve curtly noted in open court he didn’t qualify. This contributed to his 60 months in prison for the fraud counts, and 78 months for the obstruction. (These were to be served concurrently.) Black began serving this sentence at Coleman in March 2008.

Never one to accept defeat, Black appealed. The U.S. Court of Appeals for the Seventh Circuit ridiculed his arguments and declared there was ample evidence of fraud. Undaunted, Black next appealed to the Supreme Court. His convictions relied, in part, on an esoteric U.S. legal concept known as the “honest services” theory. It holds that executives can be found guilty of fraud not only for stealing money, but also for depriving shareholders of services to which they are entitled. This time Black’s persistence paid off: The Supreme Court decided to examine this long-criticized statute, ultimately striking down portions of it. This result called into question Black’s convictions. He was ordered released in July 2010.

The Supreme Court judgment meant the appeals court could no longer ignore Black. Forced to reconsider, Judge Richard Posner discarded two of the fraud counts against Black. (The government elected not to retry those charges.) Black’s second appeal to the Supreme Court proved futile, however. And that brought him back before St. Eve for a punishment revised in light of the dropped convictions.

Black’s defiance again became an issue at resentencing. The government argued the 78-month sentence should remain unaltered. The facts surrounding his crimes remained unchanged, prosecutors contended, and Blacks’ “continued to accept responsibility for his crimes, even after 29 months of being incarcerated, supports such a sentence.” Carolyn Gurland, a member of Black’s legal team, shot back with both barrels. “The government claims that Mr. Black’s refusal to fess up is nothing short of blatant disrespect for our rule of law,” she wrote. She claimed the government would be satisfied only if Black acknowledged guilt for offences he’d already been found not guilty of. “It is highly ironic that Mr. Black is the one accused of showing insufficient respect for our rule of law or a failure of trust in our courts and juries,” Gurland quipped. “Mr. Black has never sought a sentence reduction for acceptance of responsibility—a decision that, under the government’s own calculations of the Guidelines, cost him fully 21 months in extra prison time.”

Though such calculations are difficult to make with any precision, in all likelihood Black will spend longer in prison than he would have had he expressed remorse. And while scant details of his legal bills are publicly available (a large portion of them were swallowed by Hollinger International, the company he defrauded), he likely spent a significant sum from his own pocket fighting this battle. On the other hand, in his persistence he successfully crushed most of the prosecution’s charges at trial, and knocked three years off his sentence. It was a marathon battle of attrition against a formidable foe, and many would have wearied of it years earlier. One might argue that in addition to exercising his inalienable right to defend his reputation, Black also partly salvaged his reputation. In some quarters this performance was equated with dignity and courage in the face of adversity.

Then again, I have often wondered how things might have turned out, had Black conceded he’d mistreated shareholders in the early 2000s. Such an admission might have cost him control over Hollinger International, but in any event his combative conduct ensured that outcome. I suspect a more conciliatory approach might have spared him a decade lost to endless legal proceedings and prison.