Wednesday, June 25, 2008

Posner on Black and Ostrich Canards

The one and only Justice Posner ruled today on the one and only Conrad Black's appeal. (unuprisingly denied). There 's really nothing relevant to this blog other than that Justice Posner is a very important and great mind on IP matters and many other matters and that the Black case has a certain obvious connection to Canada, as the reasons make clear.

It also has this vintage passage about ostriches:
Three more issues need to be discussed. The first is
whether an “ostrich” instruction should have been
given. 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.

An ostrich instruction tells the jury that to suspect that
you are committing a crime and then take steps to avoid
confirming the suspicion is the equivalent of intending
to commit the crime. E.g., United States v. Giovannetti, 919
F.2d 1223, 1228 (7th Cir. 1990). Suppose you think
you’ve rented your house to a drug gang, but to avoid
confirming your supposition you make sure not to drive
near the house, where you might observe signs of drug
activity. That would be the equivalent of knowledge that
you had rented the house to the gang. It would be a
case of physical avoidance of confirmation of one’s suspicions
but there is also psychological avoidance, which is
the type alleged here and which requires the jury’s
“distinguishing between a defendant’s mental effort of
cutting off curiosity, which would support an ostrich
instruction, and a defendant’s simple lack of mental
effort, or lack of curiosity, which would not support an
ostrich instruction.” United States v. Carrillo, 435 F.3d 767,
780 (7th Cir. 2006). It is the distinction between willful
ignorance and ordinary ignorance.

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