Conrad Black's lawyers are preparing the legal groundwork to present his case to the U.S. Supreme Court, but first filed another appeal with the three Seventh Circuit judges who unanimously upheld his criminal conviction last month.
"We're not going to leave any stones unturned," Alan Dershowitz, the high-profile Harvard law professor and author who is reviewing Lord Black's brief, told the National Post. "There is a high likelihood the case will at least be presented to the Supreme Court for possible review."
The first salvo is a 14-page rehearing petition filed on Wednesday in which Lord Black's lawyers asked the same three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago to reconsider its decision in order to correct where the panel has "overlooked or misapprehended" important points of laws. According to the filing, "because the court based its legal conclusions on a demonstrably mistaken view of the record, we urge the panel to reconsider its ruling."
At the same time, the rehearing petition also asked that all 11 active judges comprising the Seventh Circuit appeals court review the June 25 decision rendered by circuit Judges Richard Poster, Michael Stephen Kanne and Diane S. Sykes.
"We'll be considering our Supreme Court options afterward if we are unsuccessful with the rehearing petition," confirmed Andrew Frey, the New York-based lawyer spearheading Lord Black's appeal.
Legal analysts call Lord Black's latest legal gambit a long shot, saying the appeals court is under no obligation to review the case. And although the former chairman and chief excutive of Hollinger International Inc. has the right to ask, his chances of securing another appearance before the same appellate panel that dismissed some of his conduct as "ridiculous" in a decisive 16-page ruling are slim. Even Prof. Dershowitz concedes the three-judge panel is "not likely to admit they made errors and were wrong."
"We're now in that zone of marginal likelihood of success," says Jacob S. Frenkel, a U.S. based criminal lawyer. "The likelihood of Conrad Black having an audience before another panel of any appellate court judges is remote at best."
Lord Black and three former Hollinger executives were convicted last year of three counts of fraud involving US$6.1-million from the Chicago-based publishing company. Lord Black was also found guilty of obstruction of justice and began serving a six-and-a-half year prison term at Coleman Correctional Facility in Florida on March 3.
David Radler, Lord Black's former lieutenant, is currently serving a 29-month prison sentence at Moshannon Valley prison in Pennsylvania as part of his plea bargain agreement with the U.S. government.
Sources say Lord Black's legal team is also actively pursuing a possible transfer to a British penitentiary where the threshold for early parole is lower than in the United States.
The former media baron is required to serve up to 85% of his sentence before becoming eligible for parole, which is about five years and four months. Under British law, only 50% of a sentence must be served before an offender with a prison term of four years or more can apply to the parole board for a Discretionary Conditional Release.
In Canada, offenders are required to serve one-third of the sentence before qualifying for full parole. Lord Black does not qualify for a transfer to Canada because the Montreal-born businessman is no longer a Canadian citizen. He can seek a transfer to a British jail, which are much older and less comfortable but considered by many to be more civilized and humane than their U.S. counterparts.
Sources say Lord Black is still "hopeful that justice will be done," and that "what's kept him going is the belief that it will all be corrected."
Prof. Dershowitz said "we're deeply involved in trying to think of whether we can undo this injustice."
The Harvard professor, who has represented former football star O.J. Simpson, Wall Street financier Michael Milken, boxer Mike Tyson and the late hotelier Leona Helmsley, said "there are grounds for possible appeal [at the Supreme Court] and we're carefully evaluating each of them."
According to Prof. Dershowitz, there are six criteria for granting a review at the U.S. Supreme Court, among them interpretation of federal statutes and conflicts between circuit courts, as well as constitutional issues.
Each year, the highest court in the U.S. hears between 75 to 100 cases but receives tens of thousands of applications.
For his part, Mr. Frenkel is not optimistic of Lord Black's chances with the Seventh Circuit or the U.S. Supreme Court.
"I'm not expecting there to be some great revelation. It is reasonable to believe that the next major event in the trial and legacy of Conrad Black will be his release from prison after he completes his full sentence," he said.
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