Published: Saturday, July 14, 2007
Is it just? That is, did Conrad Black and his co-defendants get what was due to them? Justice is a matter of proportion. The Black trial, in its entirety, utterly lacked any sense of proportion. The jurors curbed some of the worst excesses, but it remained in its conclusion what it was at the beginning. I wrote four months ago that I hoped for an acquittal “as a rebuke to the misuse of state power in the criminal justice system.”
Nothing that happened since convinces me that what transpired is anything other than that.
The Chicago jury delivered a verdict that had all the appearances of being careful, balanced and moderate in its particulars. The jurors picked their way through a complicated indictment and a trial full of distractions â€“ remember the heated towel racks? â€“ and threw most of it out, finding the defendants guilty of fraud on some $7-million in a period when asset sales topped several billion dollars. The grandiose claims made at the beginning of this misadventure â€“ the “corporate kleptocracy” that looted hundreds of millions â€“ did not even make it to trial. The perks dressed up as thievery did not convince anyone. The tax fraud and preposterously malicious racketeering charge were thrown out.
According to the jury then, we are to believe that Lord Black and his co-defendants, having fully complied with the law on sales in the billions, yielding themselves massive and legal returns, engaged in criminal skullduggery on a comparatively small scale in a scheme cooked up by David Radler, he of the lenient plea bargain. And then Lord Black tried to obstruct justice by removing boxes from his own office upon eviction, the contents of which had already been reported to the relevant authorities.
It is frankly implausible. But the jury was never likely to buy the only other alternative, which most Americans would consider an even greater implausibility â€“ namely, that the prosecutorial state would bring dubious charges backed only by witnesses pressured by the same overbearing state. No important witness in the prosecution case appeared without having been previously threatened with severe penalties. Significantly, no witness was presented who even claimed to be damaged by Black et al. Without prosecutorial power to threaten, intimidate and bully, there would not have been any witnesses at all.
Most ordinary Americans (and likely Canadians too) have confidence that the criminal justice system does not do such things. Few believe that in the careful motions and filings and rulings lies the oft-realized potential for a massive assault on the presumption of innocence, and on innocent men themselves. I have spent too much time visiting prisons to have any such illusions, but this trial’s result will hopefully make that reality better known.
Even those who delight in the downfall of Lord Black of Crossharbour should spare a thought for Mark Kipnis, the Hollinger lawyer who did not receive any of the fraudulent monies, but only a general bonus payment. The judge herself indicated the evidence against him was weak. No matter. He now faces 15 years in jail for simply refusing to give false testimony in exchange for a sweet deal. He is paying dearly for being bold enough to insist that natural justice demands the right to a fair trial, not the right to plea bargain.
Now it is done. Lord Black is not the first to run headfirst into the fearsome combination of American prosecutorial power and the demand to get tough on crime. We pay attention because he is an extraordinary personality and the crimes are corporate, but there are two million-plus Americans in prison. Not all of them are guilty. The prosecutorial state is nothing if not efficient. I am not sure how the Black verdict â€“ 13 guilty findings out of 42 â€“ will affect the Chicago district attorney’s 95% conviction rate, but the prosecutors seemed quite chuffed yesterday. When the firing squad takes aim, it matters little which is the lethal shot.
I don’t believe that Lord Black got his due. How will he respond? That remains to be seen as the sentencing is still a way off, but to date his response has been, with only rare exceptions, disproportionate in his graciousness, his industry and his (misplaced) confidence in the judicial system.
Ten days ago we dined in Chicago, and spoke of the trial, but also politics, urban planning, my work on campus, vocations to the priesthood, ecclesiastical history and American presidents â€“ it was the 75th anniversary of FDR’s first nomination in Chicago. It was astonishing that a man under so much pressure could be so tranquil and engaged in affairs other than his own. He told me that his faith had not flagged, even under what he regarded as unjust suffering.
Suffering tends to destroy, even to drive one to discouragement and despair. It can be an occasion of purification and even redemption, to be sure, and Lord Black will face much more suffering in the months and years ahead. The court has determined him to be guilty, and in the eyes of the law his suffering will be deserved. He believes himself innocent, and how an innocent man handles punishment is one of the great tests of character. That is the trial that now begins.
I think it quite likely that he will respond to his humiliation â€“ the attack on his integrity was always most offensive to him â€“ in a manner consistent with his comportment to date. He has been battered and bruised, but he will not permit himself to be broken. That would not be worthy of an innocent man, and even in shackles and cells, rather than ermine and newsrooms, Lord Black will conduct himself in accord with what he knows to be true.
At the blessing before our casual dinner, I prayed for justice and liberty. I do not believe that the former was rendered yesterday and the latter has been lost, perhaps definitively. What then is left? There can be no repentance or remorse where innocence is maintained, but there is time for renewal, and possibly, redemption. Justice was never in Lord Black’s hands, and now neither is his liberty. Redemption remains not only a possibility, but his task. I expect he will accomplish it.
Â© National Post 2007