On Friday, June 15, 2007, Judge Amy St Eve agreed to give the jury a controversial 'ostrich' or conscious avoidance instruction, which allows the jurors to convict Black and the other defendants if they find the defendants metaphorically buried their heads in the sand, wilfully blinding themselves to the fact that a crime was being committed.
The ostrich instruction must be requested in order for the judge to allow the jury to use this option. The use of the instruction was hotly debated during the past two weeks by prosecutors and defence without the jury present.
Eventually, the judge ruled that "The government has introduced sufficient evidence to support an inference of deliberate avoidance."
The 'ostrich' or deliberate ignorance instruction significantly lowers the standard for a conviction. As such Federal prosecutors summing up their fraud case against Conrad Black on Monday, June 18, can offer the jury two options on which to convict Black and the other defendants.
The first option is that the defendants consciously conceived and led an illegal scheme to steal money from shareholders. The second option is that the defendants deliberately avoided knowing that the scheme was illegal or that the defendants intentionally ignored their duty, and thereby deprived shareholders of their honest services.
[Editorial note: It appears that a significant problem for the defence is the fact that David Radler has pleaded guilty to similar charges. The question this raises is why would Radler plead guilty to something Black's defence contends is lawful. However, the 'ostrich' instruction uses words such 'deliberate or wilful avoidance' of knowing that a crime was being committed. Presumably this places an onus on the prosecution to prove that the avoidance was deliberate or wilful.]
A similar instruction used in the Enron and WorldCom fraud cases resulted in convictions.