Saturday, February 23, 2008

Black and Radler, Victims of Fitzgeraldian Injustice – And They Should be Pardoned

Imagine if someone operated a business in a certain country according to the laws of its land and then decided to take their company public in another country with similar rules and regulations. In doing so, they made sure to follow all statutes and laws listed on the books, that precluded nothing about business practices that were the norm in their native land, although somewhat less common in their new one, uncommon but not illegal.

Then imagine that a prosecutor with a history of seeking high profile indictments decided to charge the company owners for acting against the interest of the shareholders (even though they were unaffected by the business dealings, none of which broke any written laws or precedents or caused them any actual harm). As a result they were threatened with prison sentences.

The above scenario is preposterous, but, unfortunately, you can stop imagining. It is exactly what happened in the Conrad Black and David Radler cases. The situation is egregious and needs to be rectified.

For those who want a basic overview of what transpired, read the italicized text. For those who are already familiar with the miscarriage of justice, feel free to skip this part:

The main issue of contention was that Conrad Black and associates received payment for non-compete agreements instead of bonuses. Being that they lived and filed taxes in Canada, these non-compete payments were tax free. They are often used in Canada for this very reason.

There is no law against payment for a non-compete agreement in the United States (they are just subject to taxation in the US, an issue that was not violated by Black or Radler, making them uncommon but not by any means illegal), yet Black and his business partners were charged for receiving non-compete payments instead of bonuses. The prosecution lost its ridiculous case on most of the non-competes, but won on one non-compete in which Black and Radler agreed not to compete against another company that they owned.

Now, on face value, agreeing not to compete against another company you own seems over the top. But in actuality it has a very specific meaning:

A) It prevents one company, with one group of staff, from competing against the company with other interested parties.

B) It lasts longer than the time you sell the first company – In other words, Conrad Black and David Radler are still bound not to compete against newspapers they no longer hold ownership in precisely because they signed the agreement that prosecutors characterized as ruthless and a farce.

C) Identical deals have been done almost regularly in Canada and have always been allowed and there is no law against it in the United States.

Although several members of the jury leaned toward acquittal, they formed a compromise, something that is the antithesis of the principal of unanimous verdict. Those who favored conviction seemed to do so without regard for the case, with intense bias against corporate executives in general (which is unfair to those like Black and Radler, who stewarded their corporations well and earned much for the shareholders until baseless allegations and a hostile takeover ate the equity, none of which was caused by Black or by his associates).

On one day one of the members stormed out of the jury room angry, while other members were seen leaving their deliberations in groups. Most egregious of all, one of those pushing conviction said that her mind was made up when she her Black complain about shareholder sentiments.

Now, an executive who’s doing a good job will receive many complaints, many of which generally express anger over the fact that he didn’t do something that would have been detrimental to the company in the long term, even if it seems like a good idea at first glance. His frustrations are akin to a manager venting about employee complaints, a customer service rep expressing dismay at a large number of customer complaints or any other position in which one hears negative reaction from the public, even concerning matters that are beyond their control. I’m not saying that we should pity executives. I am saying that their occasional frustration at the number of complaints, often made without analyzing the issues, will naturally lead to frustration.

The tape showing Conrad Black’s frustration, which had nothing to do with the criminal charges against him, but was simply shown by the prosecution to inflame some of the jurors. To even allow it into evidence, the prosecution claimed that the tape supported a tendency relating charges that he was later acquitted of. But while the tape showed no lawbreaking, it did bias the jury with regard to the case in general. At least one juror, by her own admission (in interviews after the verdict), convicted based on a disdain for Black resulting from this tape and frustration at shareholders. She used this to convict him of charges not relating to the tape. That is wrong and an injustice. It needs to be corrected.

The same juror raised another troubling issue. The judge clearly instructed the jury that in order to convict on obstruction, they needed to decide with certainty which investigation Black had allegedly obstructed. But in the same interview days after the verdict, the juror admitted that she hadn’t (and implied that neither had most of the jury). This was a clear violation of the judge’s instructions. It was a violation of legal tenets used to determine innocence or guilt. Yet it was done, and it needs to be corrected.

The decision of the jury wrongheaded and judge had to throw out one of the convictions as there was no possible way that one of the defendants had committed the wrong the jury had convicted him of. This too shows that the jury engaged in faulty reasoning and is another reason that their entire verdict should be scrutinized. It seems that the Illinois judge was unaware of the Toronto Star interview in which the juror tacitly admitted bias and disregard for jury instructions. Had she known I can only hope that she would have vacated the ruling.

That admission may only be that of one juror, but even if she weren’t expressing the sentiments of many of the others, as most certainly seems to be the case, a unanimous verdict is needed in establishment of guilt and in this case, her actions negate that. For this reason justice demands that Black and his associates, including David Radler, who pled guilty to avoid the jury bias that appeared all too likely and that resulted in the above errors, should never have been convicted. They should certainly not suffer for having committed no actual crime. Such suffering is inhumane.

There is a compelling reason for Black, Radler and associates to be pardoned. Justice demands it. Patrick Fitzgerald has prosecuted numerous high profile cases with the flimsiest of evidence and has built his reputation on same. Even the most vocal Bush critics, as well as numerous former prosecutors, were amazed that White House aide Libby was charged while Richard Armitage freely admitted that he was the leaker (acting on his own accord and not breaking any formal laws, as Plame was not a covert foreign agent within 5 years of the leak). Jurors who convicted Libby felt that Fitzgerald could not get his target so he found someone, anyone he could reach, to keep what was a high profile case going. One even asked that Libby be pardoned (which he was not, having so far only received a commutation).

Yet Fitzgerald’s penchant for high profile cases in which he turns and twists facts, as was seen in the Black case, has gone unchallenged. Light needs to be shed on his actions and the harm that they have caused. The President, by rightly showing a pattern and exposing Fitzgerald’s tactics will also shed light on the Libby case. He needs to do the right thing and prevent innocent such as Mssrs. Black and Radler from going to prison based on emotional manipulations of the jury in a case where no crime was committed.

Conrad Black and David Radler, in their journalistic careers, have done more to improve relations between the US and Canada than anyone else. They have fought vigorously for freedom of the press. But most of all, they committed no crime. They should petition the President to do the right thing and right the egregious wrong brought on by a grandstanding attorney who has harmed many people in his rise to fame. Regardless of what they do, the President should do the right thing and pardon them, preventing needless human suffering that is uncalled for in this case.