ColbyCosh.com

Lord Black: I AM CANADIAN (if it reduces my prison sentence).

Whole new House of Lords now, baby. Enjoy.

Unless I missed something, the obstruction charge seems to stem from Black flouting an order from a Canadian court not to remove documents. That order shouldn't hold any water across the border.

Sean:

Yeah, I wondered the same thing.  Do you think the word "extraterritoriality" will be mentioned during the appeal (or if there's no appeal, the sentencing)?

I would think that, since appeals are always brought on the basis of either (a) errors in law or (b) errors of mixed fact and law, the very fact that he's been found guilty of obstructing justice in Canada would constitute an error of law for a U.S. court.

Or did I miss something?  An error of fact, perhaps?   ;-)

As I understand it, the United States claim to jurisdiction over this matter would lie in Black's removal of documents while he was facing three separate proceedings in the United States, two of which were the SEC investigation and the possible criminal investigation. The jury wasn't considering whether the Canadian court order was violated. The Canadian court order was apparently mentioned in the course of the trial, which I can't understand - if they had no jurisdiction to consider a potential breach of a Canadian order, I don't know how it's relevant.

With all of that said, it's exceedingly difficult to have any idea of what the hell was going on down there, given the confusion amongst those covering the trial over the various finer legal points.

"...it's exceedingly difficult to have any idea of what the hell was going on down there, given the confusion amongst those covering the trial over the various finer legal points."

Indeed.  I suspect a full account might not be available for years — perhaps when Colby writes Lord Black's biography.    8^>

"If the system judges him particularly harshly – and as a non-US citizen he could be deemed a flight risk – he could end up in a medium security prison..."

This is not an accurate statement of the situation. Baron Black may be held in jail, with "flight risk" as the main consideration, from next Thursday until sentencing on Nov. 30. He can only go to a medium security prison after sentencing (citizenship is irrelevant), in which case flight risk is not a consideration. Of course he might try to bust out of custody from the court room, en route to prison,
http://imdb.com/title/tt0106977/

or from prison. But those actions are not flight risk which means fleeing a jurisdiction whilst still not in custody.

Dear Mr Cosh: Why are today's journalists so raddled by terminological inexactitude?

Mark
Ottawa

Geez you guys, learn to use the source material. You're looking for count fourteen in the indictment here:

http://www.usdoj.gov/usao/iln/indict/2005/us_v_black2.pdf

It's fairly straightforward if you read it. The SEC and the Grand Jury were seeking these documents, the SEC had served a request for production on Black, and Black flouted the production request by removing the documents. Bingo bango bongo, O of J.

(Note, incidentally, that the documents were removed THE VERY NEXT DAY after CB was made aware that the SEC was seeking production.)

The court order is somewhat of a red herring; in effect, the obstruction of justice would still have occurred without it. Nevertheless, the existence of the court order protecting the documents in a related action does impose a higher duty on Black not to remove them, and the fact that security actually tried to prevent their removal indicates that Black knew full well what he was doing. This all goes to the mens rea of the offense.

Did the prosecution actually use any of the documentation from the boxes that Black removed from his office? Some of the reporting from the trial seemed to indicate that they didn't. This is one of the things that's particularly irksome about recent white-collar prosecutions in the US: even if they can't convict on anything else, they'll go for a conviction for obstruction of justice on the basis that you didn't play nicely with the Law & Order plea bargain script. That said, I'd say that there's enough of a precedent set with Martha Stewart that anybody facing prosecution should've figured out that if they really believe they didn't do anything wrong, they should just cooperate rather than spend time in jail.

Did the prosecution actually use any of the documentation from the boxes that Black removed from his office? Some of the reporting from the trial seemed to indicate that they didn't.

The defense asserted that all the boxes were returned; Hollinger insisted in a contempt motion that some documents were removed (and those were never recovered).

This is one of the things that's particularly irksome about recent white-collar prosecutions in the US: even if they can't convict on anything else, they'll go for a conviction for obstruction of justice on the basis that you didn't play nicely with the Law & Order plea bargain script.

That's because in all of these prosecutions there has been large-scale destruction of documents and other shenanigans (like Black fiddling with boxes of documents in defiance of court orders and production requests).

As a lawyer, I realise that the general public doesn't understand this (because I deal with incredulous clients on these matters all the time) but this is very basic; a request for production of documents is not some optional "play-nice" exercise. You are required, on the potential pain of a very long time in jail, to turn over EVERY document relevant to the case that is requested, even if it's the "smoking gun" that's gonna land your ass in jail or bankruptcy.

There's nothing "irksome" about this. It's the way the entire justice system works and it works equally to the benefit of both sides in such cases. Total disclosure is the absolute, iron-clad rule, and if your first response to a request for documents is to light the fireplace and power-up the shredder, you are going to get your butt trampled in a modern court of law. (Yes, this is probably the hardest thing for a lawyer to convince a client of.)

Oh, sorry, the documents... yes, many documents in the "13 boxes" were produced at the trial, including some memos written to holdco executives in which the non-compete payments, and various other tactics to screw the shareholders at the expense of the senior executives, were discussed.

All the documents in all the boxes had already been supplied to the SEC, and contrary to Tybalt's assertion, Black had not been given notice of any court order, except the one which required him to vacate his office. Nor was there any evidence of destruction of or tampering with any documents.

contrary to Tybalt's assertion, Black had not been given notice of any court order

Not my assertion, but the grand jury's. ebt's version may well be correct, I suspect he knows better than I.

It doesn't matter if Black had not been given notice of the order. Knowingly tampering with potential evidence is always a no no. Otherwise it would be open for someone to claim -

"gee I knew the police suspected my buddy of murder and I hid his bloody clothing and gun but I'm innocent because the police hadn't actually laid any charges when I did that"

-or-

" I thought it was likely I was going to be sued so I destroyed all the files but that's okay because the writ had yet to be filed and served when I did that"

Black knew that the documents were relevant because the Canadian civil action ( for which the non-removal order was issued) involves the same alleged misconduct as the SEC and criminal charges and thus would involve the same documents.

He also knew the SEC had commenced proceedings ( they filed notice in March '05 ) and he knew his activities were the subject of a criminal investigation (they filed a temporary stay of the SEC proceedings in April '05 on the grounds their investigation had priority).

So there's no difference between the 2 examples above and Black saying -

" I knew I was under investigation by the SEC and DOJ and took away boxes of potential evidence but I'm innocent because my lawyer hadn't told me that the SEC order had been served that morning"

Oh and also ebt - It doesn't matter that the documents had already been supplied to the SEC.

The only issue is not what - if any -documents may or may not have gone missing but also how the documents were entered as evidence at trial.

Normally those documents could have been entered under an affidavit as " business records". Documents generated and maintained in the normal course of business don't have to be " proved".

When Black took those boxes home he would have destroyed the continuity of the records. In other words they were no longer maintained in the normal course of business.

As a consequence the prosecution would have had to call witnesses to the stand and ask them a series of questions about every document they wanted to introduce as evidence to "prove" authenticity and originality.

That process might have added days to the trial and calling witnesses that otherwise wouldn't have been necessary. That all certainly amounts to obstruction

When Black took those boxes home he would have destroyed the continuity of the records. In other words they were no longer maintained in the normal course of business.

Is this a legal opinion? I'm not saying it's wrong, only that it sounds fishy to me. There ought to be some sort of rule whereby discussions of law on the internet have some sort of special font that gets used when the statement is in an actual area of expertise of the writer.

Nbob is as usual talking shit. The files were no more or less subject to tampering at the office than at his home. It's impossible to say that Black "obstructed" an investigation by disclosing all the documents he had, which is what he did.

Look, it's apparent that none of you people has any conception of the evidence presented at the trial. Do you seriously think your imaginings are of any value?

Although it is no longer a significant area of my practice about a dozen years ago a large part of what I did concerned business records (including working on an oppression remedy against some of the same defendants in this case). I was articling and jr. counsel at the time so I wouldn't call myself an expert but certainly someone knowledgeable about the subject matter.

Obviously I was not at the trial and don't know how the documents were introduced and proved or whether my theory formed part of the prosecution's theory but my point is that the cry of " I didn't get the order and the documents were already produced" seem more relevant to the court of public opinion than actual defenses to the charge.

Not having notice of the order makes Black seem innocent - and may afford a defense to a contempt of commission charge- but is no defense to an obstruction charge.

Similarly, claiming the documents were produced makes it seem like no harm was done when in fact the potential for harm is great.

Keep in mind that business records provisions form an exception to the best evidence rule and the rule against hearsay. There is a circumstantial guarantee of accuracy, reliability and trustworthiness when records are made and maintained in the ordinary course of business. When the circumstances change ( e.g. being taken out of the custody of the business and kept at home by an ex-officer) the circumstantial guarantees are lost.

The potential harm that could arise out of such tampering would include:

1. Documents turned over to the commission are copies of the originals and would offend the best evidence rule. They could not be made admissible as business records because the required affidavit could not attest to the source and accuracy of the copies when the custody and continuity of the originals has been compromised.

2. Provisions such as those found in s. 30(2) of the Canada Evidence Act become inoperable when there's been an opportunity for someone to vet the record outside the ordinary course of business -

30(2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist.

3. Business records are inadmissible when made or maintained by someone who has a motive to misrepresent.

I don't deal much with dispute resolution in my practice, but I often deal with business records issues in doing tax planning. I disagree with nothing in Nbob's outline or earlier statements. ebt, is anyone's talking shit, it's you.