WASHINGTON -- Last week, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit set himself up as both judge and jury and found Conrad Black, once the head of one of the most illustrious publishing chains in the world, guilty of fraud and obstruction of justice in running his newspapers. That is somewhat of a comedown for our criminal justice system. Years ago, the Department of Justice had arrayed some 13 charges against him, including tax evasion, racketeering, various types of fraud and that lonely obstruction of justice. Black beat them back on nine of 13 charges, leaving only three fraud charges and the obstruction charge against him. He was sentenced to 6 1/2 years in prison. Then sanity intruded.
This past summer, the Supreme Court decided to take up the so-called "honest services" law at the request of Black's lawyer. The law as it was applied to Black was, in the view of the court, unconstitutional. It further found the law unconstitutionally vague, except when bribes or kickbacks are involved; there were no allegations of bribes or kickbacks in Black's case. The court's judgment was unanimous. It sent Black's case back to Posner for further adjudication. Posner and his associates unanimously threw out two of Black's fraud counts but stood by one and also that obstruction charge.
Judge Posner is actually very fortunate that the Supreme Court has found the honest services law unconstitutional. By it, if one did not provide what were deemed honest services to his shareholders or presumably to his boss, one was guilty of fraud. Posner, despite his obligations to the U.S. Court of Appeals for the 7th Circuit, is given to popping off on all manner of public issues about which he knows very little. For instance, he recently popped off on the Roman Catholic Church and on "public intellectuals." In the first case, he sounded about as knowledgeable regarding the church as an erudite member of the Ku Klux Klan. In the second, he was a mere philistine. But in taking such time to write his drivel, he clearly is not providing the court with honest services. I believe solitary confinement would do him just fine.
I think Black's lawyer, Miguel Estrada, put Posner's derelictions just right -- and again the cloud of honest services hovers over Posner's glabrous head. Estrada was critical of the information on which Judge Posner based his opinion, saying it did not "accurately reflect the facts, misapplied the test for harmless error review, is inconsistent with the Sixth Amendment, and did not remotely respond adequately to the Supreme Court's instructions." Judge Posner took it upon himself to decide matters that Black had the right to have made by a jury.