- The Washington Times - Sunday, June 3, 2007

For the last three months, I have been in the federal courthouse on Chicago’s South Dearborn Street, attending the trial of Conrad Black and his fellow executives at Hollinger International, owners of the Chicago Sun-Times, the National Post in Canada, the Telegraph Group in London, the Jerusalem Post and various other publications that have been kind enough to throw me a crust over the years.

Mr. Black is what they call an “international media baron.” He is also a real baron — that is, he’s a member of Britain’s House of Lords. And, while most barons, earls, viscounts and whatnots have made an effort to get with the beat in a democratic age, Lord Black’s lingo has a virtuoso swagger that harks back to the doublet-and-hose days — “insufferable poltroon,” for example, which is how the 14-year-old Conrad described the principal at his Toronto private school. Many British and Canadian reporters would like to convict him for his peerage, his glamorous wife and his vocabulary.

However, even in the United States, those are not yet crimes. So instead U.S. Attorney Patrick Fitzgerald has charged Lord Black and his colleagues with enriching themselves via “non-compete agreements.” If you need to ask what a “non-compete” is, consider yourself lucky. Back in March, at the end of the first day of testimony at the Everett Dirksen Courthouse, the jury looked so bored their drooping eyelids would willingly have signed a non-compete agreement with the cramps in their legs. In the final indignity, a colorful larger-than-life personality is on trial for a colorless smaller-than-life offense.

I’ve never sat through a big-time criminal case before and no one at Court TV has ever called me up to pronounce on Anna Nicole’s baby or any of the other weighty matters that come before the jurists of this great nation. So I’m a layman, and the following are layman’s observations. But I don’t think you can be walled up on South Dearborn Street without coming away with grave concerns about the state of the justice system.

Point one: I’m amazed at how few trials there are. The federal courthouse isn’t one of these 19th century deals with pillars, it’s a Mies van der Rohe office block built in the 1960s and I’m in a courtroom on the 12th floor. There are two other courtrooms on the same corridor and gazillions more on the floors above and no trials are going on in any of them but ours.

If you want to get away from the media hubbub of the Black trial and find a quiet corner to snore away the afternoon the best place to go is one of the other courtrooms. You could hunt buffalo on the vast empty plains of these courts. There are no trials. Trial by jury, one of the most fundamental rights extending back through the U.S. Constitution to English Common Law and the Roman Empire and the Athenian Republic, is in terminal decline in this country.

It has been replaced by a system of “plea bargains” — i.e., the state offers the guy a reduced sentence in return for saving them the expense of a trial. In theory, this prevents backlogs. In traditional Common Law systems, a defendant is entitled to a “speedy” trial by jury, so if you can’t bring him before the court expeditiously you’re obliged to dismiss. But in practice no trials are speedy any more. They all take years to come before a court: If it had been like this back in the Magna Carta days, the time from when the crime was said to have happened to the opening day of trial would have been a quarter of an adult life. Even with the actuarial advantages of the 21st century, it still consumes half a decade.

So that’s my second observation: the “plea bargain,” an American innovation intended to prevent logjams in the system, has become itself the principal logjam. In the Black case, the U.S. attorney’s office spent months in investigation to get enough dope on his No. 2 that they could spend even more months leaning on him to cop a plea. The No. 2 is a man called David Radler, the publisher of the Chicago Sun-Times and the executive who negotiated all the deals in dispute in this case. He “stole” exactly the same amount of money Conrad Black did, but Mr. Black faces 101 years in jail while Radler has been offered a 29-month sentence and a transfer to a jail near his home in Vancouver, which means that, under Canadian corrections policy, he’ll be out on parole after six months in a British Columbia facility that offers “golf therapy” and community theater.

Just to run through that again: These two “criminals” divided the loot up equally, but one will be in jail a century longer than the other. That is my third point: Plea bargains remain largely unknown in other Common Law countries because they offend the heart of the system — the balance between prosecutor, judge and jury. As Professor John Langbein of Yale Law School has written:

“We expect the prosecutor to make the charging decision, the judge and especially the jury to adjudicate, and the judge to set the sentence. Plea bargaining merges these accusatory, determinative and sanction phases of procedure in the hands of the prosecutor.”

David Radler is a serial liar who has told multiple contradictory versions of events. But the government rewarded him with decades of freedom so he agreed to tap-dance for them: Greater love hath no man than to lay down his friend for his life.

That brings us to my third point: It doesn’t stop with the star witness. Everybody in this case has been rewarded. Hollinger’s independent directors — four-time Illinois Gov. Jim Thompson, former U.S. nuclear arms negotiator Richard Burt, and the super-brainy economist wife of billionaire Henry Kravis — were threatened with enforcement proceedings by the Securities and Exchange Commission for dereliction of duty. And whaddaya know? They decided to testify for the prosecution, too.

Between the immunity agreements, the pretrial settlements, the SEC “Wells notices” and the Canadian “golf therapy” sweetheart deals, every key government witness has been given a significant reward for his testimony. So a case that hinges on whether executives received improper bonuses from the company depends entirely on witnesses who have received improper bonuses from the U..S government. I know which I regard as the greater danger.

Meanwhile, the defense can offer no such inducements: It’s like the Dead Skunk Creek All-Stars competing for talent with the New York Yankees. And if you don’t take the deal, vengeful prosecutors throw the book at you for having the impertinence to decline to their offer — as at least two defendants in this case have discovered.

Point No. 4: If this is a “crime,” where are the “victims”? The government rested its case this week without calling a single victim on whose behalf it claims to act. Because the “victims” — i.e., the disaffected shareholders — think this trial is not the cure but only another symptom of the disease. This week, after three months, the government rested. It would be a great cleansing act for the integrity of the federal justice system if all four men were acquitted.

Mark Steyn is the senior contributing editor for Hollinger Inc. Publications, senior North American columnist for Britain’s Telegraph Group, North American editor for the Spectator, and a nationally syndicated columnist.

© Mark Steyn, 2005

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