RUTHFULLY YOURS

As Conrad Black prepares to return to prison, let us spare a thought for his judge, Amy St. Eve, and her itchy scalp. Judge St. Eve announced on Friday that, though two of the three fraud counts on which Black had been convicted were vacated, she would send him back to prison to finish a reduced sentence.

“As you stand before me today,” she told Black, a former partner of mine in the New York Sun and one of its founding directors, “I still scratch my head as to why you engaged in this conduct.”

Just what was the conduct she’s perplexed about? Richard Breeden, a special investigator brought in eight years ago by minority shareholders of Black’s newspaper empire, Hollinger International, had accused Black and his associates of stealing more than $400 million.

Federal prosecutors accused him of stealing only $80 million. In court, they dropped it to $60 million. Of the 13 counts that went to trial, the jury acquitted Black of nine. Of the most serious charges of racketeering and tax evasion, he was found not guilty. Same for the tabloid charges of misusing the corporate jet, feathering his apartment, and diverting corporate cash for a birthday party for his wife.

In other words, Black was cleared of Mr. Breeden’s allegation that he had run a “corporate kleptocracy.”

The jury convicted him of a count of obstruction, for obeying an eviction notice by Hollinger to remove from his former office in Toronto boxes of papers and personal effects that he hadn’t been informed were under seal. Prosecutors claimed that, out of 13 boxes, a single document was relevant to the investigation. It was a copy of a non-compete agreement that Black had previously turned over to the investigators.

The other three guilty counts involved fraud, on which the judge had given the jury the option of using an easier route, known as “honest services fraud.” She instructed the jury that it could convict Black either of stealing money or of merely denying his company his honest services—and it didn’t have to explain which. So the jury convicted him without saying of what.

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Getty ImagesFormer media baron Conrad Black

Black appealed on the basis that honest services law was too vague to be constitutional, but his request to stay out of prison while he appealed the point was denied by Judge St. Eve, and he was sent to Coleman Federal Correctional Center in Florida on a sentence of six and a half years.

While Black lay in prison, his appeal went to a panel of the Seventh Circuit Court of Appeals headed by Judge Richard Posner. Judge Posner, as it happens, has recently been hawking a book called the “The Crisis of Capitalist Democracy.” In it, according to a writer for Business Week quoted on Amazon.com, the judge “argues that competitive forces inspire financiers to take irrational gambles—especially when they’re betting other people’s money,” and that “[w]e cannot trust them to put the common good ahead of profits.”

In court, Judge Posner curtly brushed aside Black’s counsel and ruled against a press baron who has—by dint of his proprietorship of the London Telegraph, among other papers, and his biographies of Franklin Roosevelt and Richard Nixon—been among the greatest tribunes of capitalist democracy. Despite long odds, Black insisted on appealing to the Supreme Court, which in 2009 agreed to hear his case.

A year later, the nine threw out the honest-services statute except in cases of bribery and kickbacks, which had never been alleged in Black’s case. They found that Judge St. Eve, by offering the jury the chance to convict Black on honest services, had given it instructions that were, as Justice Ruth Bader Ginsberg put it for a unanimous court, “incorrect.”

So Black, who by then had been in prison for more than two years, was finally allowed to post bail. Judge Posner’s panel then vacated his conviction on two of the three fraud counts. But it left in place the conviction of obstruction and the remaining fraud count.

On the latter, Black argued, Judge Posner and his colleagues laid aside Black’s Sixth Amendment right to have a jury try the facts regarding whether he had committed pecuniary fraud, as opposed to the now-discredited honest-services fraud. Instead, the circuit judges assumed for themselves duties normally exercised by a jury, ruling that the government’s evidence on the last count was so credible that no reasonable jury would refuse to convict Black of pecuniary fraud.

Black appealed again, but the Supreme Court declined to open up the Sixth Amendment claim—even though, as Black’s lawyer Miguel Estrada put it, the court has previously held many times that, in criminal cases, questions of credibility are for the jury and no jury may be ordered to return a guilty verdict. The matter went back for the resentencing that took place last week before Judge St. Eve.

When all was said and done, the fraud Black stood guilty of involved a gain to him of but $285,000. He has made restitution of $32 million. He has been forced to stand aside while his business empire was reduced to rubble and $250 million or so of his own equity destroyed. And he has incurred tens of millions of dollars in legal fees.

On Friday, Judge St. Eve asked the parties to draft an order for the government to disgorge to Black something like $5 million in principal and interest on funds the government had seized from him in connection with counts on which he’d been convicted, and jailed, in error. So while Judge St. Eve is scratching her head over why Black engaged in the conduct she says he did, even some of his critics are wondering why the prosecutors engaged in the conduct they did.

Black himself was without illusions. The man who has been one of the greatest foreign defenders of America since Lafayette or Tocqueville has sold his American home and told his friends of his sadness that, once he finishes prison, his American life will be over and he will not be allowed to return.

“I never ask for mercy,” the Associated Press quoted Black as saying as he stood before Judge St. Eve on Friday, “but I do ask for avoidance of injustice.” It is a sad thing for our country and for newspaperdom that his request was denied.

Mr. Lipsky is editor of the New York Sun.

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