Media Roundup: Out Of The Sand

The media reports, webbed yesterday and today, on the Conrad Black trial have concentrated on Judge St. Eve's allowance of the "ostrich instruction:"

1. From the Chicago Tribune, the same paper that broke the story, Ameet Sachdev (the same reporter that broke the story) has a profile of the instruction, including recent cases in which it is used and analysis from a legal expert on its significance (as do most of the others.) This feature report also includes the hazard of its use: "Defense lawyers said there is a danger that the jury will misunderstand the judge's instruction and lower the burden of proof even further to a fuzzier 'should have known' standard, known in legal parlance as 'negligence.' This standard is distinguished from the ostrich instruction in that negligence apportions responsibility but doesn't suggest the defendant had any knowledge an act was wrong." The report suggests that the defense left itself open to its inclusion by arguing that there were no illegal transactions, thus rendering any obligation to make inquiries moot. The end of this report quotes an excerpt from the filing of Marc Martin objecting to the instruction's inclusion, just before quoting the instruction verbatim.

2. A report on the same subject by Mary Vallis, as webbed by the Ottawa Citizen, contains a definition of the ostrich instruction. "The instruction allows the jury to consider whether Black and his co-defendants deliberately avoided knowledge about the alleged crimes at Hollinger International Inc., like an ostrich does by hiding its head in the sand." It also notes that this instruction is also known as "deliberate ignorance or wilful blindness," and how the prosecutors want it applied in this case: refraining to inquire about a supposed reversal of the buyers of the newspaper properties, regarding the inclusion of the non-compete agreements that went into the sales contracts. [An abridged version of this report has been webbed by the Vancouver Province.]

3. Paul Waldie's report on the decision, webbed by the Globe and Mail, ends by calling attention to the defense motion, yet to be ruled on by Judge St. Eve, asking her to amend the instruction so as to explicitly exclude negligence as a reason for a conviction.

4. The Toronto Star's Rick Westhead's report has more detail on the defense's denied motion to exclude the ostrich instruction.

5. Moving to a completely different subject, the Chicago Sun-Times has a report about Hollinger Inc. making suggestions to the board of directors of the Sun-Times Media Group, to get the latter party doing something to get the stock price up. No comment has been forthcoming from the office of the CEO of STMG.

6. News of this turn has made the Daily Mail.

7. There's a one-paragraph mention of the trial in the Dow-Jones item roundup as webbed by CNN Money.com: item #10, "Closing Arguments Begin [Monday] In Black Trial."

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I have a side comment of my own regarding this instruction. If a stockbroker gets dinged with the ostrich instruction because (s)he kept his/her mouth clamped shut about a client's financial activities as a matter of principle, then (s)he may stand a good chance of becoming the next G. Gordon Liddy once his/her jail term is through. An extra spell in jail to protect broker-client privilege is not as glamourous as Bertrand Russell being sent to Brixton during World War 1 for the cause of peace, not is is as gut-level as Mr. Liddy's refusal to betray his friends, but some people are likely to recognize a prisoner-of-conscience aspect to it, just as some people saw Mr. Liddy as a man of honour for taking the full rap in the Watergate scandal rather than rolling.


Mark Steyn has his own, more opinionated, comment on Judge St. Eve's ruling. His line of reasoning is not inconsistent with Csr. Martin's, although it does head to parts unknown. He ends, just before the final sign-off, with an open lament: "Given that three of the four defendants are foreigners and non-residents, and thus are not being tried by 'a jury of their peers' in any meaningful sense, I think Judge Amy should have made especial effort to set the bar fairly."

The above entry is the capstone of Douglas Bell's latest, in the Toronto Life Conrad Black trial blog. Mr. Bell couldn't resist twitting Mr. Steyn about his support for the Gitmo proceedings (as well as suggest, though writing what he wrote, that there's a circuit that loves to hate Mr. Steyn.
(If such a circuit exists, then they've got new grist. A later entry by Mr. Steyn suggests that he got wind of that entry by Mr. Bell.)


Moving to a different subject, Steve Skurka's latest entry in his blog "The Crime Sheet" moves from a note of the slowdown in trial coverage to a potential case of pseudo-sex-offender defamation. The main part of it, though, recounts the case that had led to the establishement of a sex-offender registry. Csr. Skurka's gripping account of the crimes and trial of serial violent pedophile Joseph Fredericks illustrates that there's a kind of honour in lawyers' detachment. The end of the entry also hints at a kind of justice in places where law-abidingness is largely absent.


Matthew McClearn's latest entry in the Canadian Business Black trial blog recounts a whole slew of losses that have resulted from both the trial and the associated Hollinger scandal. There seem to be few gainers, except for the lawyers and consultants receiving fees (and, perhaps, some journalists, lawyer-observers and writers.) The end of his near-itemization, though, makes it plain that at least some of those fees have been for services badly needed. (This entry is less of a lament/disguised complaint than a well-put think piece. The losses are plain, but where's the overall gain for all this? Who's really going to win, net?)