June 27, 2007
And Away We Go
After a week of closing arguments, U.S. District Judge Amy St. Eve will give the jury their instructions and then send them off to consider the fate of Lord Conrad Black and three other former executives of Hollinger International Inc. on a variety of charges. The instructions (available below) outline the elements of the various charges and possible defenses, including most importantly the issue of intent. The court will give the following instruction on the knowledge element of the fraud offenses, which is a key to the case because it contains the deliberate ignorance or "ostrich instruction" [in italics]:
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.
The italicized portion is sure to generate a ground for appeal if any of the defendants are found guilty on one or more of the fraud counts.
How long will the jury be out? This case involves a number of disparate charges, and one particularly complex count: RICO. The fraud counts cover both the non-compete payments, along with the related SEC disclosures, and the "perks" counts against Lord Black. Those charges form the basis for the RICO charge, which requires the jury to determine whether there is a pattern of racketeering activity and the operation or control of an enterprise, which will require additional considerations beyond just the underlying fraud allegations. There are also tax counts and, for Lord Black, an obstruction of justice charge. Add in the fact that there are four defendants with different levels of involvement in the underlying decisions, and that's a recipe for a fairly long deliberation. When you consider that the Fourth of July holiday will come just a week after the jury retires, it would not surprise me to see them remain out over two weeks, with the possibly of very long deliberations. This is a lot like watching paint dry, or perhaps a cricket match -- very little action, and no way to predict when there will be a resolution. (ph)
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