TORONTO - Petitioners who are granted a review by the U.S. Supreme Court win the majority of their cases, giving jailed businessman Conrad Black reason to be optimistic as the top court prepares to review his fraud conviction, a legal expert says.
  
"More often than not, the petitioner wins and that's probably almost three-quarters of the time," said Steve Kinnaird, co-chair of the appellate and Supreme Court practice at law firm Paul Hastings in Washington, D.C.

"You can never really firmly predict, but I would say the betting money in the abstract is always on the petitioner."

The Supreme Court agreed Monday to review the fraud conviction that helped put the former media baron behind bars in 2007.

And while that alone offers up some hope that Black might one day be exonerated, the review doesn't necessarily amount to the equivalent of a "Get Out of Jail Free" card, experts say.

The top court has three choices now that it has agreed to review his case: leave the conviction in place, rule that one aspect of the case was flawed, or overturn it entirely. Should it decide the case was flawed, it would then fall to the prosecution to decide whether to pursue a new trial.

The decision to review the convictions of Black and two of his former associates, convicted for their role in an alleged scheme to defraud shareholders of the Hollinger International media company, came as a surprise to many in the legal world.

Usually when the top court agrees to review a case, it is in fact reviewing a broader point of law on which lower courts have failed to reach a consensus.

"Supreme Court review is rarely granted, so the fact that it was granted is significant in and of itself," said Kirby Behre, a Washington lawyer and former federal prosecutor.
  
"It suggests strongly that the Supreme Court believes that there's a genuine issue relating to the case that must be resolved and generally it's an issue that has been the subject of disagreement by lower courts of appeal."

At issue in Black's case is the right to honest services -- a concept developed in the 1970s to convict corrupt politicians who were seen as defrauding the public of their "honest services" as public servants -- and whether it should apply to private conduct.

"The courts of appeals are hopelessly divided on the application of (honest services) to purely private conduct," the Supreme Court says in its decision to review Black's case.

The question to be reviewed is whether the concept of honest services "may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim."

Kinnaird said the issue is not whether the facts presented in Black's case were accurate, but rather a broader question of how the law should be applied in this case and similar ones in the future.

If the top court rules that the right of honest services doesn't apply to private conduct, the prosecution will have lost the primary argument that it used to convict Black in 2007 and the fraud conviction could well be overturned.

But Eric Sussman, former prosecutor in the Black case and currently Chicago head of the regulatory enforcement and white collar litigation practice at New York law firm Kaye Scholer, said he expects Black will be convicted again if the case is re-tried.

"I have every confidence in the world that the prosecutors in the U.S. attorney's office will go right back and try the law as the Supreme Court changes it and convict Conrad Black a second time if that's necessary," Sussman said in an interview with BNN, a specialty business cable channel based in Toronto.

Black was convicted in 2007 of three counts of fraud and one count of obstruction of justice. If the fraud conviction is overturned, Black could be exonerated on all counts, since the obstruction of justice charge is closely linked to the fraud charges.

But Sussman said he doesn't think that's likely.

"No matter what the Supreme Court does, the obstruction of justice charge will stand, that conviction will stand, so he will stay convicted and have a 6 1/2-year sentence on that charge alone," he said.

It could be a year or longer before Black knows his fate. It's expected that the defendants won't make their oral submission until November or December, and it could be next summer before the court makes its final decision.

At that point, the case could be headed back to a lower court to begin the lengthy trial process all over again.

The convictions were in relation to US$5.5 million in payments that Black, Mark Kipnis and John Boultbee received from a subsidiary of Hollinger, which Black founded.

U.S. prosecutors alleged Black and three other executives orchestrated a scheme to pocket about $60 million in non-compete payments negotiated with buyers when Hollinger sold newspaper assets -- money that should have gone to shareholders.

The so-called "non-compete payments" -- stemming from the sale of Canadian papers to Winnipeg-based CanWest Global Communications Corp. (TSX:CGS) and U.S. papers to several U.S. buyers in 2000 -- were at the heart of the government's case.

The Montreal-born Black, who was forced to renounce his Canadian citizenship in 2001 in order to accept an invitation to join the British House of Lords as Lord Black of Crossharbour, has already served more than a year of his 6 1/2-year prison sentence, and is currently being held at a federal facility in Coleman, Fla.