TORONTO - Conrad's Black's disdain for the justice system could be a factor in sentencing for his fraud and obstruction of justice convictions, legal experts say.
Black, who is to have a bail hearing in Chicago on Thursday and faces sentencing on Nov. 30 along with three co-accused, has had harsh words for the case against him. At one point, Black used the term "smear campaign."
The former newspaper baron referred to the prosecution's trial team as "Nazis" and said their case was a "toilet seat" around their necks.
The notorious business tycoon, who gave up his Canadian citizenship to become a British peer, gave media photographers the finger outside the Chicago courthouse, where he was later was convicted of fraud and obstruction of justice.
Will the prosecution say this behaviour is reason to give Black a tougher sentence? More importantly, will the judge take Black's inflammatory comments and actions into account in sentencing?
"Almost certainly yes," said James Morton, the president of the Ontario Bar Association and a lawyer for Steinberg Morton Hope & Israel.
"Contrition is a major element in the exercise of sentencing discretion... remorse and contrition are factors that would lower a sentence, so the failure to admit wrongdoing should not increase a sentence but it will not be helpful in seeking leniency."
Had he pleaded guilty before indictment or trial, he could have obtained the benefit of an "acceptance of responsibility" credit at sentencing, said former U.S. prosecutor Kurt Stitcher.
Showing remorse after a verdict won't help because "under the American federal sentencing structure, post-conviction contrition is rare and, typically, meaningless," said Stitcher, an expert in white collar crime now in private practice in Chicago.
"Even bearing in mind that the U.S. sentencing guidelines are now 'advisory,' courts generally follow fairly closely to them when meting out sentences and the guidelines provide for a reduction in offence level for 'acceptance of responsibility,' i.e., a guilty plea and an expressed admission of wrongdoing," Stitcher said.
"After having gone to trial, however, the vast majority of defendants will continue to proclaim their innocence unless, for example, they're facing the death penalty and are begging for mercy, so Lord Black's rejection of the jury's verdict is really not a strike against him."
But it's unlikely that prosecutors would "play up" Black's protestations and even less likely that the judge would take them into consideration when sentencing him, Stitcher added.
"While Lord Black may be well advised to temper his comments - lest they be construed as personal attacks on the judge, jury, or prosecutors - Judge Amy St. Eve is unlikely to pay any heed to such comments when fashioning an appropriate sentence. "
"Players in our system of justice typically recognize that a convicted defendant will appeal his sentence and is, therefore, highly unlikely to appear 'contrite' for the conduct of which the jury convicted him," Stitcher said.
Black's arrogance towards the justice process could even work against him on a subconscious level on the part of the judge, Morton said.
"It won't be helpful, that's for sure. Even if the prosecutors avoid raising it directly (and they have not be very shy so far) a well-publicized lack of remorse cannot help but be a subconscious factor in sentencing," Morton said.
"Of course, a public mea culpa might well be seen as false and thereby counterproductive. Probably the best thing to have done was to have said nothing more than 'I am disappointed in the result and my counsel are reviewing my options'."
Tony Merchant, a Saskatchewan lawyer pursuing a shareholder class-action suit against Black, said his continued commentary may actually assist in his remaining on bail until he is sentenced in November and receiving appeal bail when the matter moves to appeal.
"He does not sound like a flight risk, showing instead that he is determined to stand and fight, and Lord Black's confidence in the appeals and the apparent confidence of his defence team will weigh on the judge's mind in terms of thinking that if they are so confident, there may be something to the appeals. These 'plus factors' may also get him appeal bail, which is for 12 to 18 months," Merchant said.
"People have overlooked that there are some benefits to Lord Black's uncontrite public outpourings but on balance a silent recognition of some shame would serve him better."
