Not often do judges get the chance to defend ostriches, but it does happen.
Conrad Black was the CEO of an American corporation (Hollinger) which owned many newspapers around the world. Hollinger was controlled by another corporation (Ravelston) in which Black owned the majority of the stock. By this device, Black controlled Hollinger which paid large “management fees” to Ravelston which, in turn, paid Black a really nice salary. Hollinger (I’m skipping the details) paid Black and others $5.5 million dollars so they wouldn’t open a competing newspaper in Mammoth Lakes, California (Population 7,000) This was fraud. Black and his co-defendants pocketed the money without telling the shareholders of either corporation of this sweetheart deal.
A jury convicted them and they appealed.
Today the Seventh Circuit Court of Appeals in Chicago upheld the jury’s convictions and — at the same time — sprung to the defense of Ostriches.
In criminal law there is what is known as an “ostrich” instruction. Suppose Jack asks Jill to mail a package for him and gives Jill a large sum of money in return. Jill suspects, but does not know for sure, that the package contains illegal drugs, but mails it anyway and pockets the money. Jill, in effect, buried her head in the sand and a jury could convict her for an illegal drug shipment. An “ostrich instruction” tells the jury that to suspect she was committing a crime and then avoiding the suspicion [by not opening the box, for instance] equals committing the crime.
Here is what the court wrote about ostriches:
The first [issue on appeal]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, http://www.sandiegozoo.org/animalbytes/t-ostrich.html (“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.