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Thursday, August 21, 2008

Conrad Black Appeal Denied

I haven't read the court order, but this story suggests that the 7th Circuit denied a rehearing by the original panel and an en banc rehearing also. That would mean, as the story points out, that the only avenue left is an appeal to the Supreme Court of the United States. The odds of that happening are very slim, but we won't know for sure till the cert denied is issued.

When I have spoken about the Black case, many Canadians, including non-supporters of Black, express their shock that he could have been convicted. I usually reply by expressing my shock at their shock!  This is because, unfortunately, the trend towards overcriminalization (as many have called it) of corporate and regulatory law started over 60 years ago. The Supreme Court of the United States abolished the ancient substantive safeguard of mens rea (as opposed to the procedural safeguards in the Bill of Rights) for regulatory crimes in United States v. Dotterweich. Mens rea, which means "evil mind", or basically the intent to commit the crime, was an ancient requirement that no man may be charged with and convicted of a crime unless the state could prove that he intended to commit the crime and actually did it.

In the Dotterweich case, the manager and president of a company was criminally charged when his company shipped adulterated and mislabeled drugs in interstate commerce even though the president did not personally know of the violation. The Court upheld his conviction, and admitted that the abolition of requiring intent might visit hardship upon those whose “consciousness of wrongdoing [is] totally wanting,” but went on to justify this new rule by stating that when “[b]alancing [the] relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of conditions imposed for the protection of consumers.”

So that is how it all starts - the poor hapless consumers! The state can essentially justify anything it wants to do in the name of the poor hapless consumers. (I always wonder why no central-planners get charged when there is a government screw-up like the latest bad meat breakout.)

For more on why mens rea is important, you can read my (and my co-author Craig Lerner's) Regulation piece here.

Posted by Moin A Yahya on August 21, 2008 in Crime | Permalink


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The Prosecution in the Black lynching had it's mind made up,they were going to GET him, he was doomed from the start. They ended up with charging him on two counts, one being absolutely outrageous, obstruction of justice.If a person can be charged for removing personal effects or personal documents from their office in a so called democracy, we're on a slippery slope. It appears that's what was done, it can't be proven so when in doubt, don't do it doesn't apply in US Justice. Unless, you're dealing with a glove that doesn't fit as in OJ Simpson case. Two people were murdered so either somewhere a murderer walks the streets or no one did it, no one has ever been charged with their murders.

This case is like the Martha Stewart case in that they prosecuted a high profile person to use them as an example and deterrent for something they can't control.

Martha was charged for lying when they really had nothing else but they GOT her on something, that was their aim.

Following the Black case most fair minded people have come away with a jaded view of US justice. How much better is it than in a commie state? A perfect example of the oft applied 'the law is an ass.

These people don't belong in jail. Public humiliation, monetary loss and the toll stress takes on their health is cruel enough,they pose no threat to the man in the street.
Both Stewart and Black have contributed to society in different ways.

Canadians should be more concerned about springing Black from US prison than worrying about getting one of the terrorist Khadr family members "home".What did any of the Khadrs do for Canada besides use it for safe haven? Chretien didn't attempt to bring him "home" but he's sticking his nose in, saying the Harper government should demand he be sent to Canadian justice. Harper needs no advice from Papa Jean.

Is the world gone nuts?

Posted by: Liz J | 2008-08-22 6:32:40 AM

I have to agree. The United States really has a problem with prosecutorial over reach. I mean I was glad to see some execs at Enron go down, but what Conrad Black did is hardly a crime. Mail fraud was some crime cooked up by the FBI because they couldn't nail gangsters like Capone. It is highly unconstitutional and a severe twisting of personal freedoms. Bush has gone too far and needs to reign these guys in. We also have some a-hole Sutton who put 2 border guards in jail for 10 years for doing their job. Bush's hands are all over that one as well. Sutton is a buddy of Bush and Homeland Security went on over drive to nail Campeon and Ramos. Can you imagine that some rapists don't even get this sort of time? I agree, the US government was out to get Black. Indeed, I am no fan of Martha Stewart, just like Black has many enemies - but we should not let that cloud our judgement. Just because they are disliked does not mean they should go to jail.

Does the Attorney General have any idea what kind of crimes are being committed on Wall Street every day? Naked short selling is a crime but it goes on without a peep from the AG, well, except of course when its precious GSEs Fannie Mae and Freddie Mac were the targets. Message is go ahead and naked short sell, but NOT these 2 companies. It is well known that brokerages collude to engage in short raids on various stocks and sectors. These 2 activities are far more criminal and devious than what Black did - so where is the AG on them?

Posted by: Faramir | 2008-08-22 10:53:51 AM

I think we can all agree that the government is unfettered and can do pretty much whatever the hell it wants to do. It's the ongoing cycle of building big government, getting ate by it, then watching everything crash and starting over.

All because it appears to fulfill some fantasy that we're a better country if we have a babysitter. What happens when a powerful protector becomes a predator? If you don't read history, just stay tuned.

Posted by: attitude | 2008-08-22 11:35:02 AM

Sadly American "justice" has mostly become a sham and a mockery of justice. Conrad Black was yet another victim along with Martha Stewart. All this while corrupt politicians on the take and the likes of O.J. Simpson go free.

Posted by: Alain | 2008-08-22 12:15:34 PM

Between liberal anti-business judges and morons for jurists (who give drivers for terrorists a walk) I don't know what can be done.

Posted by: Faramir | 2008-08-22 1:29:22 PM

I can't believe I am reading the above comments. 'Lord' Black is a vicious criminal thug. He is/was intrumental as a mouthpiece of the Neocons and one of the key proponents of Neocondom.

His newspapers essentially established the frenzied tempo of constant war and mayhem around the globe that has not abated despite the ouster of this crooked dog.

His conviction is the first sign in the firing of the salvo by the American Patriots of reclaiming their land from the fangs of the Neocon Cabal. The American Republic is being led to ruins by the likes of Black and his Cabal, and the Patriots are finally saying 'to hell with these Likudniks'.

As the Great American Patriot Thomas Jefferson once noted: "The Tree of Liberty is occaisionally refreshed with the blood of Patriots and Tyrants".

Many Patriots have senselessly died in a grotesque war so that the world is 'made safe' for Israelli plunder, and it is time that these bloodthirty Tyrants start paying the price.

The Patriots will not be satisfied until 'Lord' Black is guillitined Jacobin-style, and his severed head put on a stake outside AIPAC headquarters as an examples and warning to the Tyrants.

Posted by: Joe | 2008-08-22 2:01:24 PM

Amen to that Joe!

Long live the American Republic, and God Bless the Patriots for defending us againt these ruthless thugs.

The neocon cabal has led America to disaster in Iraq, and now they are gunning for a complete catastrophe by trying to start a war in Iran. Black's whorish wife, Barbara Amiel, is one of the most vocal hyennas screeching for more murder. Of course, 'catastrophe' is a relative word. Perpetual war and the destruction of Republican Ideals as established by the Founding Fathers is the main objective of the Black crowd.

For the sake of our Republic and Divinely inspired values of Liberty and Justice, let us all pray that Black's fellow cell mate, Bruno, teaches this malevolent scoundrel the meaning of 'wide-receiver'. That way, Black will finally understand how all the people he has sodomized have felt.

God Bless the United States of America.

Posted by: Bill | 2008-08-22 2:14:49 PM

Joe/Bill - one and the same troll.

Posted by: Alain | 2008-08-22 2:40:28 PM

Alain, agreed. Couldn't be two people that messed in the mind.

Posted by: Liz J | 2008-08-22 3:09:24 PM

Listen, Alain:

You are what, francophone? Yes, that's right, by implication you are not a member of "God's Chosen People", so stop whoring yourself for Uncle Cohen. Be proud of your heritage and stop acting as a lackey for these people.

The sad irony is that at the end of the day, you are nothing but a 'goyim' to them. Anyone who is not part of their 'chosen people', they hate with a passion. So they are probably laughing at you, and saying "look at this dumb moronic francophone goyim lackey thinking we appreciate his brown-nosing".

You will be shocked to know that they hate you as much, if not more, than their 'enemies' i.e. muslims, slavs, chinese.

Read the Talmud and see what it says about the Goyim.

Posted by: Joe | 2008-08-22 8:40:03 PM

Had I any doubt Joe, you just confirmed you are a troll. I actually have read - more than once - the Talmud, so you clearly cannot understand Hebrew since your statement is rubbish. Go try to provoke people on a different blog.

Posted by: Alain | 2008-08-22 9:01:06 PM

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