Posner Affirms Conviction, Laments Ostrich Myth

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On June 25, the Seventh Circuit affirmed the conviction of Conrad Black, one of several former newspaper executives found guilty last year of defrauding their company out of millions of dollars.  In a bad sign for the defendants, the opinion was issued just 20 days after oral argument.  In a good sign for us, it was written by Judge Posner.

Among other things, the defendants argued that the jury should not have been given the "ostrich instruction," which, it turns out, is an instruction that says a defendant who lacked certain knowledge can still be found guilty if the evidence shows he intentionally avoided knowing the truth — so, claiming you saw nothing because you had your head in the sand won’t work.  For example, Posner wrote, "[i]f you receive a check in the mail for $1 milllion that you have no reason to think you’re entitled to, you cannot just deposit it and when prosecuted for theft say you didn’t know you weren’t entitled to it."  So much for the "I thought some billionaire liked me" defense, unfortunately.

While he thought it was "too late" to matter, Judge Posner still valiantly took a shot at rescuing the reputation of the ostrich, which, he noted, does not actually stick its head in the sand:

The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego, Birds: Ostrich (visited June 12, 2008) ("When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible").  It is too late, however, to correct this injustice.

United States v. Black, et al., No. 07-4080, slip op. at 12-13  (7th Cir. June 25, 2008).

Worth a try, though.  If ostriches were not seen as such a pushover, then there might be less ostrich-related violence, and the resulting increase in the self-confidence of male ostriches might lead to more ostriches.  Which, I think we can all agree, would be a good thing.

Link: Chicago Sun-Times