Sunday, December 9, 2007
With Conrad Black most certainly facing jail time, there are three possible scenarios here: 1) he could be ordered to go directly to jail; 2) he could be ordered to go to jail but allowed time for the specific placement to be made and then he could be allowed to report to that facility; 3) he could be granted bail pending the appeal. My co-blogger, Peter Henning lays out the test and some examples here for this last category. In the mix here also is the fact that he can serve his sentence in Canada under the terms of a prisoner transfer treaty. Lets look a little closer at this particular issue:
1. Conrad Black's past conduct provides strong evidence that he is not a flight risk. This speaks well for bail pending appeal. But, today, this factor seems to play more of a role in holding people who are flight risks than in saying those who are not a risk should be released.
2. There is no evidence that he would pose a danger in society - a typical realization in a white collar case. The conviction in a white collar case usually strips the person of any power that would allow them to do further damage.
3. So it all comes down to whether he has a substantial question of law or fact that might result in reversal. In many ways the trial judge being the person to evaluate this issue is somewhat strange as it is the trial judge who ruled throughout the trial on the issues that are likely to be presented on appeal. Most often the issues fall into four categories: jury instruction (whether it is an improper one or an offered one not admitted), insufficiency of the evidence, admissibility or inadmissibility of evidence, and constitutionality.
Although case law exists on what constitutes a "substantial question," much is left to the judge - who often issues very little guidance for future courts, as courts often rule on this issue without explanation.
Some get the bail -
- Gov. Ryan - bail for the appellate stage, but not the Supreme Court stage;
- Bernie Ebbers - bail granted pending the appeal, but once affirmed told to report to prison;
- Martha Stewart - bail granted pending the appeal by the 2d Cir.- although she then decided not to take it
Some do not get bail -
- "Scooter" Libby - denied bail pending appeal - but then
pardoned; having his sentence commuted;
- Jeff Skilling - no bail pending appeal;
- Former Atlanta Mayor Bill Campbell - no bail pending appeal;
- Jamie Olis -ordered directly to prison;
- Former Alabama Gov. Siegelman & Richard Scrushy - no bail;
- Chalana McFarland - no bail
In an attempt to reach a classless sentencing structure we may be moving the emphasis to this third category - the substantial question. This poses a problem as it attempts to measure error in a stage before the issues have been raised. The defense is placed in the position of showing their appellate cards prior to the game beginning.
Additionally, one issue that seems to be overlooked is whether the individual reports to the prison or is taken on the spot. For the individual already incarcerated, the answer is usually easy - they just stay in prison. But for the white collar offender who poses no risk of flight, or to society - should they be subject to immediate incarceration that places them in a holding pattern pending their assignment to a facility? And what standard is being used here to make the decision of who gets to report directly to the prison facility, and who does not? Shouldn't all white collar and non-white collar offenders who pose no risk of flight or harm to society be given this privilege? And yes, it can be an important privilege to not have to wait in prison for the placement orders and then be transferred by prison authorities to the eventual destination. Reporting directly to the facility, although it may be at the cost of the defendant, is often a better way to be enter the prison system.