Fitzgerald had held the press conferences in our case and had wildly exaggerated any possible negative construction of the facts; there was no evidence that he knew the case well or that any of the prosecutors had done more than take Breeden’s report and launch the usual trial opener of two years of press assassination, witness intimidation, and financial strangulation. Now that the trial was nearing, even the elements of the media that had so diligently personed the shovels in my interment had, if only to build drama, to acknowledge that it was going to be a main event after all. A main event cannot have a foregone conclusion. At this long undreamt-of extremity, the odds seemed to be narrowing.
* As I flew from Reagan to Pearson airports, on a flight that offered connections to Trudeau, Lesage, and Stanfield airports – Washington, Toronto, Montreal, Quebec, Halifax – I thought that someone was no longer young who knew the people after whom the airports are named.
[CHAPTER TWELVE]
TO A QUESTION OF WHETHER I might want to escape jurisdiction, as Fitzgerald had suggested, I told the media outside the court house after a status hearing: “The U.S. Marines could not stop me from appearing.” I knew the trial would be difficult, but I knew that the charges were so unfounded that as long as Peter Atkinson and Mark Kipnis did not break and join the finger-pointing ranks of the plea bargainers, this would be the place to expose the fraudulence of the case against me. Forcing the enemy to prove the guilt of the innocent beyond a reasonable doubt had been my strategy, and it had to be seen through to the end, despite the procedural stacked deck in favour of the prosecution, who, I discovered, would address the jury last, unlike the practice in other advanced countries I knew.
There were times when I worried about the preparation and general agility of Eddie Greenspan. I had taken the measure of Eddie Genson as a crafty lawyer in essentially low-life cases, and a man who certainly knew the local people and tricks. I had bought into the Greenspan view that big firms were cynical, indifferent, and overpriced or even exploitive, and that ex-prosecutors could not be trusted. Like George Jonas, I had urged Greenspan to make himself aware of American procedure. We, and Barbara, feared that U.S. procedure could be invoked against him to offset his well-established competence as a trial lawyer. Barbara tried hard to persuade him to go to Chicago to observe a trial; she offered to pay for an American trial lawyer of his choice to come to Toronto and take him through a moot court of procedure to familiarize himself with differences in courtroom practice. He said he would think about it and never took up either offer.
I believed that Greenspan saw this as the crowning opportunity of his career. He would now become a famous lawyer in the United States. He had a maximally publicized case, a decisively winning case on the facts; the co-defendants, contrary to the predictions of Genson, had held. This should be the occasion for a star turn. All anticipated it, and the Toronto press carried Greenspan’s reputation ahead of him to Chicago like the Infant of Prague.
I never received much response from him to the lengthy summaries of the case I wrote for him. Greenspan claimed that he would be fine with U.S. procedure because he had read all ten volumes of Wigmore (the leading American proceduralist). I assumed and had reason to believe that he had examined whatever problems might arise, to immunize himself as a cross-examiner to the harassments of the prosecutors. If their performance with me up to now had been any guide, they would certainly nip at Greenspan’s heels if they could.
There was also a factor of stamina. Greenspan had had open heart surgery in August 2005. His diabetes was a problem, and I was always concerned at how ponderous his movements were. I urged him repeatedly to act as chief counsel, but he almost never spoke in our seven status hearings with Judge St. Eve. Genson carried the ball right up to trial. The conference table in Greenspan’s office was covered with files for the cross-examination of Radler; there were six hundred of them, indexed and sequential. He was preparing a destruction of the government’s star witness that appeared to be worthy of the cause. (He was very proud of his intended opening question: “Mr. Radler, have you ever lied to Mr. Black?” The question, notionally excellent, would never be asked.)
I worried that Greenspan wasn’t really on top of the case and might not have the physical and mental energy to carry such a heavy burden. I asked him if he was sure he could do it; it was now an academic question unless he invoked a medical reason to withdraw. It would be very late to bring in anyone else in such a complicated case, and the judge would not allow a change on any but medical grounds. There was not much to be done unless Greenspan confirmed that he needed reinforcement; we might then have been able to introduce another counsel to join the fray with the improbable pair of Eddies.
In a moving exchange motivated by my concerns, I tried to have this out with him, at his office on a Saturday about a month before the trial began. Eddie Greenspan took from his pocket something he had written down and had typed up, from when he visited the Cabinet War Rooms in London some months before: “My whole life had been a preparation for this hour and this trial.”
On invitation I identified it as Winston Churchill’s comment on returning from Buckingham Palace on May 10, 1940, after being invested, in desperate circumstances as the German blitzkrieg broke in the West, as prime minister by King George VI and accorded practically unlimited powers as head of a national unity government. Greenspan told me in the most emphatic terms that the particular wording of Churchill’s statement applied to him and this case. In the circumstances, I was happy and relieved to believe him, and assumed that he was preparing himself for such a trial.
There was nothing for it but to go with the team I had, heavily reinforced as it was by bright younger personnel from Baker Botts and by Greenspan’s dedicated and capable articling student, Chris O’Connor.
As 2006 ebbed away, I prepared for what would be the supreme crisis of my life. I had stabilized the financial and public relations war, I thought, especially in Canada. I wrote an extensive comment on the case for Tatler in the United Kingdom, as I distrusted all the London national newspapers. Everyone conceded that a Big Battle was looming, and the media had to take note of my repeated references to the charges as unfounded and at the failure of the government to roll any of the accused after Radler took his dive.
Genson claimed to be confident, but I had learned the wisdom of a British friend who had had serious legal problems, that the lawyers could never be believed in anything they said. Certainly, it was obvious that Genson was an inveterate old journeyman and I wasn’t much inclined to take him literally. Barbara had taken an instant dislike to him on his one visit to our Toronto home. She sat silently listening to him answering my questions. “He hasn’t the slightest idea what this case is about,” she said afterwards, conceding that he had a charming wife. After that meeting, she lapsed into complete pessimism. From prior observation younger lawyers tended to be more forthright but insufficiently experienced for their opinions to be accorded great credence. Experienced lawyers regarded the client as a bloody nuisance, and it was true that almost nothing they said could be believed. The more they expressed a desire for instructions, the less likely they were to carry them out. I hoped that, given the relations I had had with Greenspan, this truism might not apply to him.
I wasn’t especially impressed with the entourages of the two Eddies, except for Chris O’Connor and the young Baker Botts people and Carolyn Gurland in Genson’s office. She seemed to know the documents well and was a lively personality, and an attractive youngish woman. Jane Kelly, who had worked with Greenspan for many years and did a lot of legal research, was likeable and jolly but a trifle unserious.
Terry Gillespie, Genson’s partner, had a good reputation and was available. Marc Martin, another semi-associate of Genson and a successful counsel to many of Chicago’s Mafia figures, and a friendly acquaintance of the judge, was a motions and procedural expert, and a good meat-and-potatoes lawyer but a bland barrister and a defeatist. He thought all Chicago jurors were overawed by
the presence in the case of the U.S. government.
It was all coming down to the two Eddies. If they could do it, we would win, because we were innocent and seemed to have a fair judge. The prosecution was completely overconfident; Sussman would have been constitutionally incapable of any other attitude. He would have been cocksure when in his diapers. Right up to the trial they were scrabbling unsuccessfully after my tax records (which would not have yielded them anything of interest).
THE LAWYERS OF THE CO-DEFENDANTS were a mixed bag. Gustave Newman for Jack Boultbee was a legend, with more than fifty years of trial experience. He had won the Bank of Credit and Commerce International (BCCI) case for Roger Altman, who was implicated by prosecutors in the $10 billion bank failure. A broad New York accent and a display of silver facial hair gave him an Old Testament appearance and rich cadences of a bygone New York. He sometimes quoted 1920s New York governor and presidential candidate Al Smith, a vintage character but no longer well known, especially in Chicago. His co-counsel, Pat Tuite, was originally a Chicago lawyer who now conducted a practice of sorts in Florida. He was a charming man, and though he had once been a prosecutor, briefly, he was now, like Greenspan and Genson, steeped in the lore of the demi-monde of hoods and thugs, and was addicted to anecdotes about colourful clients who had been unalloyed criminals.
This was one of the problems of these cases. The lawyers were either ex-prosecutors – who had no objection to the prosecution except they wanted to make more money and would generally be prone to cut a deal with the prosecutors – or lifelong defence counsel who were generally unaccustomed to having respectable clients and tended not to know much about real commerce.
Atkinson’s lawyers were Benito Romano, a former U.S. attorney in New York, and Michael Schacter, who had been one of Martha Stewart’s prosecutors but who now wished to make a name for himself as a defence counsel. To date, in discovery that was recorded on videotape in Toronto, he had mainly been noteworthy for making completely unnecessary distinctions between non-compete and bonus payments in a way that could be exploited by the prosecutors.
Another former prosecutor, Ron Safer, who seemed and proved to be very capable, was acting for Mark Kipnis. All the other counsel for the defence were constantly asking for severance from us and were already claiming mistrials before the real trial began. Their repetitive note was the irritating scramble for sideline status in the government’s witch hunt for me. They had the moral courage not to plead guilty to crimes of which they were innocent, but not the strategic sense to see that trying to throw up petty distinctions between their and my legal positions would just play into the prosecution’s hands. I feared that only our counsel knew that the only way to win the case was a take-no-prisoners frontal attack on the government and its witnesses.
Apart from Radler, the prosecutors would frog-march through the entire Audit Committee, who would state in unison that they knew nothing of the contested payments. They would also have to bring in Paul Healy, to try to make the case on the New York apartment. Only I was involved in the charges about taking the airplane to Bora Bora, and the dinner that fell on Barbara’s sixtieth birthday, and the supposed obstruction of justice with the removal of the boxes from my Toronto office, and RICO. Jack Boultbee was charged with me in the New York apartment. Everything was set up to encourage the others to try to distance themselves from me, and I had no confidence that the other counsel would resist the temptation to try to fly under the government radar. The trial would pivot, I thought, on the ability of the Eddies to destroy the government’s main witnesses. Nothing else would exonerate anybody from anything.
I FINISHED THE NIXON TEXT, and after final editing it went to the printers in February for a March launch. It would receive admiring reviews in Canada and Britain as well as the United States, and most reviewers generously acknowledged that it was a considerable feat given the other concerns I had had while writing it.
Friends gave me several parting dinners and an avalanche of messages arrived, many accompanied by prayers and uplifting poems. There was a Conrad Black Fan Club website and a sequence of supportive T-shirts: “Conrad Will Win,” “Go Conrad,” “Free Conrad,” and so forth. These gestures were comforting after the endless bad weather since the clouds originally burst in November 2003.
In my last column, for a time, in the National Post, I wrote of my longstanding admiration of Chicago as, among other attainments, the bar of Abraham Lincoln and Clarence Darrow. I mentioned that Barbara had bought a Hungarian Pulli, an adorable puppy to accompany two aging and amiable dogs of the same breed, but that he would not have grown unrecognizably when I returned. (She named it George-Black after my father.) I wrote that those who had buried me and covered the surrounding ground with garlic and crucifixes would be disappointed to discover that I was, as I had never ceased to claim, innocent, but that I bore no hostility to those who had opposed me, except for a few outright crooks whom I did not need to name.
In a touching demonstration of solidarity, as well as an addition of great insight to our inner circle, my daughter, Alana, retired from her apprentice job in a fashion clothing store and came with us to Chicago, enlisting for the duration of the case.
I had an early foretaste of the absurdity of the advice I might receive. Through the generosity of the chairman of Four Seasons Hotels, Isadore Sharp, we got a comfortable apartment-suite in the Ritz-Carlton Hotel at a reasonable rate. The views of Chicago were magnificent on our high floor. The suite had no special grandeur, but a room each for Barbara and me to work and a galley kitchen. Greenspan was very concerned that the media would bribe a housekeeper to take pictures of it and that the name of the hotel would antagonize the jurors. I had the lease signed by a society of supporters that I had formed, to cushion any public relations problem. None arose.
Greenspan’s own proposed hotel, the Palmer House, was not a success. The famous El (elevated railway) came clattering past his window at a distance of about forty feet every few minutes, and as he put it, the room was darker when he opened the curtains than when they were closed. His party checked out after one night, greeting him in the lobby with their packed luggage. They moved to a Renaissance Hotel that answered its phone with “your urban sanctuary.”
Genson had had the insane idea that Barbara – and Alana, whom he had not met – should not come to court. They were to sit dutifully in the hotel watching soap operas and playing gin rummy, for months, awaiting the return of the client each day. I literally prayed that my counsel would be the font of more promising ideas when we finally, imminently, came to grips with my mortal enemy, in what we all kept referring to as a court of law, though little law seemed to have intruded into the prosecution.
IT WAS IN A SPIRIT OF GRIM BUT hopeful determination that Barbara, Alana, and I flew to Chicago on March 13, 2007, on the charter I usually use. (Commercial air travel to the United States was practically impossible, because of the unpredictable number of hours required to penetrate the security system once my name popped up in the computers.) We arrived on a premature spring day and settled quickly into the Ritz-Carlton. The hotel personnel, throughout our stay, could not have been more agreeable. The next day began the four months of Judge St. Eve’s dawn patrols, requiring everyone to be present at hours ranging from 8:45 a.m. to 9:15 a.m. Generally Fridays were off, but not always. They would be intense sessions.
The court setup did not resemble any American TV series apart from the fact that the jury sat in a box in two rows to the judge’s left. However, about three feet away at a table directly in front of the jury and facing it head-on were the four prosecutors, who would grin and smirk at the jurors and make exaggerated gestures in response to defence lawyers and witnesses. This was, to say the least, irritating. The next table, immediately in front of the judge, was our defence table. I sat at the far end on the right side, again from the judge’s perspective. The next table had the Boultbee team at the front of the room and the Atkinson team at the farther end. At the last table, sittin
g with their backs to the wall, were Mark Kipnis and his counsel. I supposed my position as chief defendant, with the honour of fourteen unfounded criminal charges against me (three had not been proceeded with), gave me the central position directly beneath the great seal of the United States of America over the judge’s well-coiffed head. The gallery held about eighty spectators, and there was an overflow room upstairs, served by a single, fixed camera, which was focused solely on one of the technicians who put documents up on projection screens. The marshals, who were friendly and genial, regularly banished and admonished journalists for one offence or another.
On the morning of March 14, there began the rather depressing procedure of empanelling a jury. I was ready for an unprepossessing sample of the great American public. I was underprepared for such a procession of mainly monosyllabic and listless people. For three days, they filed through, usually in groups of eight. We had their questionnaires, which gave their occupations, areas of residence, educational backgrounds, and family history, and explored whether they had prejudices that might be tweaked in the case: nationality (none had any notion that Canadians were different in any degree from Americans), economic status, social position, and so forth. Something of their thinking and articulation could be divined from their handwriting and choice of words. Some had an unpretentious dignity and candour, and some were fairly educated.
They gave their preferred reading, favourite television programs, and hobbies. Apart from the choices of one man who claimed regularly to read the New York Times and The New Yorker, and appeared to be likely to suffer extreme lip strain if he tried to read more than one paragraph of either, most were low-brow magazines, soap operas, bowling, bingo, gardening, and attending to dogs. There did not appear to be as many as half of them who had ever read a book, played a game of chess, or watched a serious newscast.
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