In rare ruling, court agrees to hear Black's appeal

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Conrad Black, convicted but not cowed, always maintained he would prevail, that his struggle was a "play in three acts" destined to end in redemption.

But few believed he had a chance until yesterday, when he defied some daunting odds in a last-ditch effort to overturn his conviction on fraud and obstruction of justice charges.

In a ruling that surprised many legal observers, the U.S. Supreme Court agreed to review cases against Lord Black and two former colleagues who were accused of siphoning more than $6-million (U.S.) from his media conglomerate, Hollinger International Inc.

This was more than a long-shot: of the 10,000 or so requests it receives every year to review lower court cases, the nation's highest court only accepts about 70.

"I'm obviously elated," said Miguel Estrada, Lord Black's lawyer. "I think it's a good sign for Conrad."

Mr. Estrada said he had not had a chance to discuss the ruling with his client, and Lord Black did not respond to an e-mailed request for comment.

The court's decision to review the case does not necessarily mean Lord Black will be released: the judges can only hand the case back to a lower court, which could in turn order a new trial.

And while the court will review the fraud conviction, many observers doubt it will also review Lord Black's obstruction of justice case, meaning he would remain in jail on those charges.

"This doesn't mean that they are going to reverse [the convictions] by a long shot," acknowledged Ron Safer, a Chicago lawyer representing Mark Kipnis, a former Hollinger official whose conviction will also be reviewed. "But at least we are in the game now."

Lord Black, who has served more than one year of a 78-month sentence in a Florida prison, was down to his last legal card after unsuccessfully attempting to appeal the decision. There was little reason to think his luck would change. He has been ostracized by erstwhile friends, and been pilloried by critics in the press.

Yet, with his petition to the nation's highest court, he finally appears to have caught a break: judicial controversy surrounding a controversial statute known as the "honest services theory" that prosecutors employed to secure convictions against Lord Black, Jack Boultbee, Mr. Kipnis and Peter Atkinson.

Mr. Boultbee, Hollinger's former chief financial officer, and Mr. Kipnis, a former in-house lawyer for the company. asked the court to review their cases. Mr. Atkinson, who was a senior vice-president at Hollinger, is seeking a prison transfer and did not join the petition.

"We are hopeful for a complete vindication in the Supreme Court," said Richard A. Greenberg, a New York lawyer representing Mr. Boultbee.

The Supreme Court typically selects cases that address a significant issue of federal law, particularly one such as honest services, where there is disagreement among lower courts.

The concept was pioneered in the 1970s to target corrupt politicians, on the idea they had defrauded the public of their honest services.

Prosecutors have begun using it as a tool in corporate fraud cases, including Enron Corp.

However, many judges and lawyers, including those representing Lord Black, continue to believe the statute is too broad and ill-defined.

"I think there may be a number of [Supreme Court judges]who are interested in that," said Hugh Totten, a Chicago lawyer who has closely tracked Lord Black's case. He noted that one of the Supreme Court judges, Justice Antonin Scalia, recently unleashed a withering criticism of the statute, and has highlighted it as an area the court should address.

Mr. Estrada, Lord Black's lawyer, predicted the court would hear arguments on the case in either December or January, with a decision handed down by June. Sun-Times Media Group, which houses Hollinger's remaining newspaper assets and is now under bankruptcy protection, has been attempting to recoup more than $100-million worth of legal bills for the defence of Lord Black and other executives. But the Supreme Court's involvement will likely delay those efforts for another year, at least.

"He is obviously a very determined person," Eric Sussman, who led the prosecution against Lord Black and is now in private practice, said of the deposed media baron's legal fight. "It helps that he's playing with other people's money."

Mr. Sussman said it's "possible" Lord Black could have all the charges dismissed and be released from jail, but he believes it is "highly unlikely." Even if the court throws out the fraud conviction, which carries a five-year sentence, Lord Black is serving a concurrent six-and-a-half year sentence for obstruction of justice. His lawyers will argue that the severity of this sentence was impacted by the fraud conviction, and should also be tossed out.

The new legal developments also appear likely to delay the forthcoming publication of The Fight of My Life, a fiery memoir by Lord Black in which he is said to write unflinchingly about his treatment by the U.S. justice system. Though Lord Black's literary agent, Michael Levine, intends to shop the book to British publishers this week, he noted yesterday that publication of the memoir could jeopardize his client's case if it were to be released before the Supreme Court rules.

Doug Pepper, president of the Canadian publishing house McClelland & Stewart, said the book was still on schedule to hit stores Sept. 8. "All that said, you don't want the book ending without resolution," he acknowledged.

The book's publication has already been held up awaiting the conclusion of Lord Black's appeals process. "We have to discuss this with Conrad and his lawyers," he said.