I’m down in Chicago covering the final stages of the Conrad Black trial. Tomorrow morning, Judge Amy St. Eve will read her instructions to the jury and then they will get down to their business of sifting through three months and then some of testimony. The instructions, though, are not really St. Eve’s instructions. Rather, they’re instructions that the defence and prosecution have been haggling over for weeks with the occasional ruling from St. Eve. You can read what St. Eve will tell the jury tomorrow. She won’t deviate one bit from this script.
One of the Chicago lawyers who’s been watching this whole affair from the beginning is Hugh Totten. Totten was among the six lawyers recently interviewed by Maclean’s for their opinions on the case. Hugh thinks Conrad is not going to beat all the charges.
During one of the lulls in the prosecution’s rebuttal of the defence lawyers’ summations today I leaned over and asked Hugh which of the 90 instructions the jury will get are a problem for Black and which are good for him.
Totten says three are a problem and one is good news. Here are those instructions, worded exactly as St. Eve will read them:
Instruction 24
A Board of Directors or Audit Committee can ratify a prior unauthorized transaction.
Ratification has the same effect as approval. In order for such ratification to be valid, the Board of Directors or Audit Committee must have acted on complete disclosure of the material facts and circumstances surrounding the transaction. A subsequent ratification relates back to the transaction as of the date when the transaction occurred.
Problem for Black: “complete disclosure”. If the jury feels disclosure of certain non-compete payments and other details of certain transactions, this could help the prosecution secure at least one “Mail and Wire Fraud” conviction.
Instruction 49
The term “official proceeding” includes a proceeding before a judge or court of the United States, a proceeding before a Federal grand jury, and a proceeding before a Federal Government agency which is authorized by law. The United States Securities and Exchange Commission (the “SEC”) is a Federal Government agency which is authorized by law.
Neither an investigation by the United States Attorneys Office, nor any Canadian court proceeding, nor any internal corporate document retention policy constitutes an “official proceeding.”
An official proceeding need not be pending or about to be instituted at the time of the offense. An official proceeding, however, must have been reasonably foreseeable to the Defendant.
The government bears the burden of proving beyond a reasonable doubt that the official proceeding was reasonably foreseeable to the Defendant.
Problem for Black: Remember that video of Conrad spiriting those boxes out of the back of his Toronto office into his car? Well, that’s what this one is all about. For that act, Conrad is charged with “Concealing Documents from an Official Proceeding”. At trial, his defence claimed that it wasn’t until the day after Conrad took these documents out of the office that the U.S. Securities and Exchange Commission came looking for them. The government, in Totten’s view, has established that “beyond a reasonable doubt that the official proceeding was reasonably foreseeable” to Black.
Instruction 63 (The “Ostrich” Instruction)
When the word “knowingly” or the phrase “the Defendant knew” is used in these instructions, it means that the Defendant realized what he was doing and was aware of the nature of his conduct, and did not act through ignorance, mistake or accident. Knowledge may be proved by the Defendant's conduct, and by all the facts and circumstances surrounding the case.
You may infer knowledge from a combination of suspicion and deliberate indifference to the truth. If you find that a Defendant had a strong suspicion that criminal conduct was occurring, yet intentionally shut his eyes for fear of what he would learn, you may conclude that he acted knowingly, as I have used that word.
You may not conclude that a defendant had knowledge if he was merely negligent in not discovering the truth.
Problem for Black: Black’s lawyers fought hard to keep this out of the instructions. Here’s what my friend Globe and Mail reporter Paul Waldie wrote about this:
In Lord Black's case, the jury could find that even if the defendants did not directly participate in the disbursement of non-competition payments, they could be found guilty if they deliberately avoided knowing about fraud related to the payments.
Lord Black and the other defendants filed motions opposing the use of the instruction, arguing it was inappropriate in this case. They also argued it could result in the jury finding the defendants guilty even if their actions were not deliberate but merely negligent.
But yesterday, Judge Amy St. Eve ruled that the instruction was appropriate.
“Here, the government has introduced sufficient evidence to support an inference of deliberate avoidance,” the judge ruled. “Although the court does not agree that every factor set forth in the government's [motion] supports the instruction, there is sufficient evidence for it.”
On the plus side for Black, according to Totten:
Instruction 15
You have heard testimony from Paul Healy, who received immunity; that is, a promise from the government that any testimony or other information he provided would not be used against him in a criminal case. His receipt of immunity is not to be considered as evidence against the Defendants.
You have also heard testimony from David Radler, who has pleaded guilty to an offense.
Radler received benefits from the government, including a promise of a reduced sentence in return for his cooperation. His guilty plea is not to be considered as evidence against the Defendants.
You may give the testimony of Healy and Radler such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care.
Black likes: “Caution and great care” are hints to the jury that maybe they shouldn’t pay attention to Healy and Radler so much. Big deal, says prosecutor Eric Sussman. Today Sussman told the jury: “You do not have to believe a single word David Radler said to convict each and every one of these defendants.”
Conservative MP Brian Fitzpatrick (right), from the Saskatchewan riding of Prince Albert, is the other lucky MP who will watch his bill clear the Senate today.