Wednesday, March 14, 2007

Conrad Black's Trial

With the inevitable media circus that will swirl around Conrad Black's trial in Chicago getting wound up, I find myself musing a little about whether or not he can receive a fair trial in these circumstances.

My concerns are not with the media circus itself, nor with Black's public profile. Instead, I find myself wondering if the whole mechanism of a trial-by-jury is even the appropriate means by which to test the case.

Fundamentally, Black's trial is set in the same criminal system context that we use to try murderers, rapists and the odd mobster. Largely violent criminals, or people whose acts are violent at their roots. Black is none of these, accused instead of what amount to unethical business and accounting practices that ultimately resulted in defrauding investors. Perhaps more worrisome is the ability of most people to comprehend the machinations that took place in Black's companies.

Is it reasonable, in such a situation to pick twelve people off the street, and ask them to sit in judgment over Mr. Black? Few enough people are used to the kind of sums that Mr. Black handled on a daily basis, much less the intricacies of the corporate structures he created. Is it possible to give a jury what amounts to an advanced degree in Business Administration during a four month trial, and then expect them to be able to synthesize some reasonable concept of whether Mr. Black acted fraudulently or not? Will a jury of 12 "average citizens" be able to measure Mr. Black's side of the story without being overwhelmed by the prosecution's inevitable desire to throw huge numbers around in their arguments?

These are all tough questions. I find myself wondering if the real problem is the fact that we are applying a series of legal constructs to this case that derived from an era when crime was mostly a matter of either physical theft, or physical harm, and we find ourselves faced today with a new breed of crime which involves money, deception and obfuscation, and we just haven't recognized the need for a new kind of "criminal justice" yet.

Looking back at the history of organized crime in the United States (and elsewhere), we find cases like Al Capone - who was ultimately jailed for nothing worse than "tax evasion", in spite of a decades long investigation that never quite put enough together to hang a more serious charge on him.

Today, we see Ken Lay, Bernie Ebbers and other corporate high fliers being put into jail after often lengthy, and boggingly complex criminal trials. Often, it seems to me, these people fell prey to little more than avarice, and got caught at it.

I am not arguing that these people should not go to prison for their actions, but I find myself wondering aloud whether or not the "trial by peers" model which has served so well for criminal cases hasn't hit a limiting factor in these cases. So much specialized knowledge is needed to understand much of the evidence and case against the accused, that I can't imagine how someone without that specialized knowledge could possibly arrive at a sensible understanding of the crime itself, and the impact of that crime upon its victims.

Is it time to create a specialized court of trial specifically for prosecution of "criminal fraud" cases - especially when we are talking about the enormous scale and complexity of fraud that cases like Enron, WorldCom, and now the Hollinger/Ravelston case, represent? One where we are talking about a panel of judges and accounting specialists are responsible for analyzing the details of the cases.

... food for thought, perhaps.


evilscientist said...

On the other hand we expect those same juries in murder trials to understand often complex forensic evidence. In many instances, especially in the US, a person's life may hang in the balance. If we expect a jury to understand complex scientific evidence, it's just as fair to expect them to understand complex accounting evidence. IMHO.

Grog said...

I am similarly troubled by the increasing complexity of evidence being presented to juries who may or may not have the appropriate awareness of the limitations of some of those techniques.

Crimes such as what Black is charged with also have a dramatically more abstract notion of 'harm' behind them which makes them even more difficult to parse sensibly for the average person on the street.

These days, it seems to have more to do with a lawyers ability to convince or confuse the jury than it does the actual case itself, and that worries me.

Anonymous said...

Instead of trial by jury, how about trial by ordeal, which was how things were done up until about the time of the Magna Carta. It was simple, a contest or task was chosen, say a jousting competition between two aggrieved parties. The two would fight, and God would put his weight behind the one that was in the right. Another task might be to lower someone into a well, and if the water accepted him, he was acquitted. What would determine if the water accepted him? You guessed it, God again! (of course it helped to have friends in high places setting your task)

Given the choice of a jury of 12 or of using God as my co-pilot, I think I'd stick with the 12.