The man who put Conrad Black behind bars doesn't believe Tuesday's hearing before the United States Supreme Court will result in Lord Black getting out of jail.
"There are a lot of different permutations, to be perfectly honest," said Eric Sussman, who led the prosecution of Lord Black and now works for a Chicago law firm, Kaye Scholer. "But not many of them lead to him getting out of jail."
Lord Black was convicted in 2007 of fraud and obstruction of justice in Chicago and he was sentenced to 61/2 years in prison. He has lost several appeals of his conviction, but last May, the U.S. Supreme Court agreed to review his case, along with two others that deal with a legal concept known as "honest services."
Mr. Sussman, who plans to attend today's hearing, said the Supreme Court's review will concentrate on Lord Black's conviction for fraud and will not focus on the obstruction of justice charge. That conviction stemmed from Lord Black's actions in 2005 when he removed several boxes from his Toronto office while the U.S. criminal probe was under way. Lord Black was sentenced to 6 1/2 years for that offence.
The fraud convictions carried a three-year sentence and he is serving all sentences concurrently. So even if the court reversed his fraud conviction, Lord Black would still have to complete the sentence for obstruction of justice.
Mr. Sussman said that if the Supreme Court reversed Lord Black's fraud conviction, the case would likely be referred to the appeal court in Chicago that issued a sharp rejection of Lord Black's appeal last year.
"In most instances, when the Supreme Court is considering a larger issue [the court]will send it back to the intermediate appellate court which is more familiar with the facts of the case," he said. The appeal court "could rule either he needs a new trial or that it's harmless error and even if the law were as the Supreme Court says it is, it wouldn't have made a difference in his case."
Mr. Sussman said he agrees with other legal observers who believe the Supreme Court will rein in the honest services theory, which has been used widely by prosecutors to tackle political corruption and white-collar-crime cases. Critics say prosecutors have gone too far and criminalized conduct that would normally be a civil court matter. Courts have also struggled with the idea and issued contradictory rulings regarding its interpretation.
"There clearly needs to be some type of clarification given to the law," Mr. Sussman said. "So I think [the justices]are looking to provide that."
In legal briefs to the Supreme Court, Lord Black's lawyers have argued that the honest services theory used to convict him is vague. They also argue that if the court reverses Lord Black's fraud conviction, the other conviction should be reversed as well, because the circumstances are connected.
Lord Black is being backed by the U.S. Chamber of Commerce and the National Association of Criminal Defense Lawyers, which have filed briefs in support of his lawyers' arguments. The prosecution in today's hearing is being backed by the Citizens for Responsibility and Ethics in Washington.
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