Conrad Black's bid for release pending a review of his fraud convictions was denied Thursday but experts said it's unlikely the former media baron will be content to remain behind bars until the U.S. Supreme Court hears his appeal.
Mr. Black has already served nearly 15 months of a 6 1/2-year prison term following his convictions in July 2007 for fraud and obstruction of justice.
The obstruction charge is not part of the Supreme Court review, but the three fraud counts are being assessed and Mr. Black's lawyers had argued he was entitled to his freedom until a final decision was made.
Jacob Frenkel, a former U.S. prosecutor who has been following the case, said he expected Black to head back to the trial court and file for bail there, and if he loses, appeal that decision.
"He will use every avenue available to hold out hope for bail," Mr. Frenkel said.
In his one-page decision refusing bail, Justice John Paul Stevens indicated that Mr. Black can re-file the request in a lower court.
Hugh Totten, a business trial lawyer in Chicago who followed the case, said it would have been surprising if the high court granted bail.
"That would have been a very clear indication that they though something very wrong had gone on here," Mr. Totten said.
"The normal course, in these kinds of criminal appeals, is to do exactly what they have done, which is keep the status quo while they take a look at what is up on appeal."
Mr. Black's lawyers declined requests for comment Thursday.
Mr. Black, who gave up his Canadian citizenship in 2001 during a messy legal battle with then-prime minister Jean Chrétien in order to get a seat in Britain's House of Lords, is serving his sentence in a Florida prison.
The former chief executive of the Hollinger International Inc. newspaper empire, once one of the world's biggest newspaper groups, was convicted of swindling shareholders of the company out of millions of dollars.
The trial court in Chicago agreed to bail for one of Mr. Black's co-defendants, former Hollinger chief financial officer and chartered accountant John Boultbee, on a $500,000 U.S. bond secured by his nephew. Mr. Boultbee was convicted of fraud.
Mr. Black's lawyers argue the only difference between the two cases was one count of obstruction of justice and that isn't reason enough for a different result. If the fraud charges were overturned, there would be nothing to obstruct, they have argued.
But Eric Sussman, the U.S. prosecutor who led the case against Mr. Black and who is now in private practice in Chicago, said he didn't find any merit in that suggestion.
"The jury in the case was clearly instructed accurately about what obstruction of justice was and the notion of whether he obstructed the investigation is completely separate from the underlying crime," Mr. Sussman said.
"I'm confident that the jury was instructed properly and that the Seventh Circuit opinion will stand because I think it's the right legal opinion."
The bail ruling, Mr. Sussman added, suggests that the "Supreme Court is confident that no matter what happens he's still going to be serving six-and-a-half years for obstruction of justice."
The U.S. government had opposed Mr. Black's request for bail, arguing the former newspaper baron shouldn't be granted bail because the review doesn't apply to all his convictions.
Government lawyers said Mr. Black should only get bail if he can show that a favourable Supreme Court ruling would likely result in a reversal of all the counts, or given a shorter sentence.
The Supreme Court agreed to review the case last month and can now either leave the conviction in place, rule that one aspect of the case was flawed, or overturn it entirely.
At issue is the reach of a federal fraud statute that was originally aimed at prosecuting public officials.
The 7th U.S. Circuit Court of Appeals in Chicago upheld the convictions, but the county's appeals courts are divided on the central issue undergirding those convictions.
Hollinger once owned the Chicago Sun-Times, the Daily Telegraph of London, the Jerusalem Post and hundreds of community papers across the United States and Canada.
All of Hollinger's big papers except the Sun-Times have now been sold and the company that emerged changed its name to Sun-Times Media Group.