Conrad Black’s Petition for Certiorari

As has been widely reported, the U.S. Supreme Court yesterday agreed to hear Conrad Black and his co-defendants Jack Boultbee and Mark Kipnis’s appeals of their convictions in a Chicago court. The Petition for Certiorari, what we would call an Application for Leave to Appeal, can be viewed at Scotus Blog and is worth looking at for insight into effectively reaching an audience by written legal argument. In particular, the brief points up the importance of an effective introductory statement which tells the reader the precise issue to be addressed and proceeds to recite the facts so that the justice of the case is seen to be in your client’s favour. After citing the leading decision on point and subsequent statutory amendment, the brief begins:

Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant’s conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government’s bid to have the jury return a ‘special verdict,’ a procedure not contemplated by the criminal rules and universally disfavoured by other circuits as prejudicial to a defendant’s Sixth Amendment rights.

Later on in the brief, the author returned to the theme, an important one in an application for permission to appeal to a high court, of clarifying the law and resolving disputed legal issues:

Nowhere is the need for clarity and restraint in the application of Section 1346 greater than where, as here, the government is prosecuting private conduct that has no connection to the type of honest services fraud that prompted the 1988 expansion of the mail fraud statute in the first place – public corruption by government servants.

Overall, the brief makes a persuasive case that flawed jury instructions may have caused the jury to render an unsafe conviction.