The judge wanted twelve jurors and six alternates. I had been conditioned to expect some leftish and podgy housewives, reactionary postal or local government workers, and some utter cretins. These groups were out in numerical strength. Some astonishingly inappropriate people answered the call: a gigantic, moustachioed woman who acknowledged that all accused people were guilty; an advanced technician who admitted to the same views, and tenaciously clung to them, presumably to avoid spending three months or more as a juror; a corporate activist who believed all shareholders were victims and all executives were dishonest; and a thick slug of what would in another time and place be called the lumpenproletariat. The judge had her own idiosyncrasies. Anyone, she said, who had already booked a ticket for their summer holidays (this was early March) was excused from jury duty – no evidence of ticket required. This news got out pretty fast, and anyone that had anything approaching a genuine occupation or interests solemnly informed the court that, regrettably, their June and July were otherwise occupied.
The jurors, from beginning to end, seemed determined to dress down as much as possible. Blue jeans were the uniform for almost all. Men never, once, wore jackets, much less a tie, and only a couple of the finalist women ever wore a dress or skirt. I had been conditioned by black-and-white films, more recent television, and even news coverage of other trials to imagine that these people would dress up a little for the judge and the media of several countries. It seemed to me they were more concerned to show how unimpressed they were with the whole process. So was I, but not, I suspect, for the same reasons.
The procedure for selection allowed both sides a number of rejections without any reasons given, and there was room to challenge jurors for stated causes. Odd moments occurred. When several of the potential jurors answered “no” to the question “could you be fair,” the judge argued passionately with them, conveying her confidence that they could. “Different tax treatment for rich and poor people is wrong,” said one, echoing a theme that emerged. “You will hear about people receiving sums of millions of dollars,” the judge would say. “Can you put that aside when judging the case?” Eventually, most of the advocates of wealth redistribution would self-righteously proclaim their fairness and on to the list they came. The judge asked Genson, as apparent senior counsel to the chief defendant, if he sought a greater number that could be rejected as jury candidates without explanation, and Genson, in a way that I was to become familiar with and always made me very uneasy, quickly said no. Michael Schacter leapt to his feet and said that he did want more, and the judge immediately agreed. I asked Genson what had motivated him, and he nonchalantly replied, “I thought she’d reject it. I blew it.” I asked why he didn’t ask anyway, what was the downside? “I said, I blew it.” He was to shoot from the hip and blow it a distressing number of times.
Greenspan said that Barbara and Alana should not attend the jury-choosing session of clients, counsel, and advisers, but he moved so slowly that the agile ladies preceded him into the selection room and sat down, and by the time Eddie shambled in, he had forgotten his nonsensical prohibition. He and Genson slumped into chairs and dozed off, leaving it to Marc Martin and me to represent our side in the entertaining but undignified session that ensued.
The defence counsel and the defendants were allocated one of the neighbouring, unoccupied courtrooms (they were nearly always unoccupied, as almost no one can afford to go all the way to trial in federal court), and jury selection began from the list of eligibles we now had. All the defendants had their own jury consultants. I never had the impression that any of them actually knew what he was talking about. More knowledgeable, perhaps, but no more reassuring was Mark Kipnis’s counsel, Ron Safer. He did not fire me with confidence in the pursuit of a condign verdict when he stood on a chair and declaimed, with the confidence of an ex-prosecutor, that: “We have to get rid of any juror with any intelligence.” With this group of candidates, that did not seem an insurmountable challenge, but it was not encouraging.
The few people who appeared to be well disposed would certainly be opposed by the government, and they were. One prospective juror had read and liked my book on Roosevelt, but was disqualified (not for that but because Marc Martin had represented someone accused of murdering one of the candidate juror’s relatives). We accepted a few howling opponents, as we thought, as alternates, on the theory that they would never make it onto the jury. One such person had to withdraw after a few weeks, for health reasons, news that we all received with relief, and then she gave an interview to one of the Canadian reporters and said that she was well disposed to the defendants.
The most visibly memorable of the jurors was the woman with long curly blonde hair, a formidable cleavage, full-figured to overflowing, who blew impressive pink bubbles of chewing gum, which, as Mark Steyn would write, hovered over the prosecution table threateningly, like First World War Zeppelins. Shortly after this description by Mark, the bubble-blowing stopped, presumably at the behest of the judge.
Two of those selected seemed to be narcoleptics and slumbered through most of the entire trial. The dozier of the two (they became known as Dozey and Dopey) looked fully awake and ramrod straight only on the last day of the trial, when she was startled to such an unprecedented state by what Mark Steyn considered the mind-altering monotony of Sussman’s final statement. To be fair, this woman had written three times on her questionnaire that she did not want to serve. No one could say that we had not been warned.
As the trial progressed, their simplicity and determined lack of style caused me to admire some of the women jurors. They did, for the most part, seem like decent people, and they were all very reliable and prompt attenders. Some had made their way in the world with a lack of presumption and edge that did legitimize idealized versions of the virtues of a juror, as espoused by Chesterton and others. On balance, I preferred jurors to judges after all I had endured from the bench in the U.S. and Canada.
Lacklustre though they were as a group, I managed, as I always had, to attribute superficially indiscernible strengths of mind and character to the American public, even this little echelon of it, and persuaded myself that they might be up to the task that was now theirs. After these years of waiting, it was oddly reassuring to look on these unexceptional people and reflect that they would decide if my family and I would be impoverished and whether I would spend the rest, or any, of my life in prison for offences I did not commit.
On the day when the jurors were approved, as I was leaving the courthouse, a journalist with a London East End (Cockney) accent, said: “A jury of your peers, Lord Black?” My reply, that “Any citizen of this great country is my peer” was not facetious.
THE TRIAL BEGAN ON MARCH 20. There were hundreds of accredited media, and they swarmed us at every opportunity. Alana immediately became the star of the entire proceedings, by her beauty, carriage, and poise. She said at all times that she would not speak with the press, and reinforced this when a particularly bumptious reporter pushed in beside her at an evening social gathering and suggested they go on a shopping expedition together. Alana smiled pleasantly at everyone, but apart from Mark Steyn and Theresa Tedesco of the National Post, and a couple of others, she didn’t care for the journalists, in varying degrees, as if judging the different venomous potentialities of poisonous snakes.
The opening statement confirmed the Stalinesque flavour of the prosecution. Prosecutor Jeff Cramer, in all his primeval brutishness, strode about the court, pointing at the defendants and naming us individually, and likened us in his opening sentences to bank robbers and street thugs and burglars. We had stolen $60 million from the unsuspecting people who had put our stock away “for the retirement or college fund.” We did not wear masks, use guns, or resort to violence, he acknowledged, but we were morally indistinguishable from those who did.
Cramer’s children were present, excused from school to sit in the front row and hear their father liken innocent men to hardened and violent criminals. Mark Kipnis’s very
gracious mother and other members of his family were there, along with Barbara and Alana, who each managed almost every day of the trial.
My son Jonathan came in two stretches, and James came near the end. Big and strong young men, they resisted urgings from the defence team to seduce female jurors or at least rough up a few journalists. As a group, they were a fine-looking family, and a great source of pride. Jack Boultbee’s wonderfully outspoken wife, Sharon, and their witty son, Michael, and briefly Jack’s daughter, Leslie, also came in mid-trial. Alana’s and Barbara’s messages, handed up to me, were usually insightful and sometimes uproariously amusing.
Barbara was understandably appalled at Cramer’s excesses. I found them reassuring, as he obviously had no idea how vulnerable the government’s case would prove, and he and Sussman should finally discover that aggression is not an adequate substitute for the law and the facts.
Genson followed Cramer. The consensus was that he was fairly effective. At my insistence, and over Greenspan’s protests, he put in that there had been theft in our company, but that I had been the victim rather than the author of it. The whole company had been stolen from me. Greenspan had opposed this because he did not want to get sidetracked by the narrative of corporate factionalism and internecine strife in which this trial was just one of the more dramatic rounds. He thought it tactically better to seek a reasonable doubt on the exact charges. The opening statement is the single place to give jurors the overall picture and set up the scene for what is about to unravel before them in confusing bits and pieces. I wanted my lawyers to explain very briefly just how this battle between shareholders over-selling the company had roller-coasted into a criminal trial. It was not to be. Both Genson and Greenspan were afraid of confusing the jury with the facts of the case. But they were unafraid of leaving the jury with no context for what they were hearing. I felt that the smoke-and-fire theory was likely to prevail to some degree if the jurors did not understand that this was part of a corporate factional war. What, after all, was the reason I was thrown out of the company apart from the prosecution’s contention that I was a racketeer and thief? They were given none. Genson said in his opening that the prosecutors were tools of a faction, but I could never get either of them to explain even a hint of the real story beyond that. I was dragging two great wet blankets behind me. It was immensely frustrating, but at least we had hinted at the full story in the opening.
Genson gave a strenuous and detailed refutation of most of Cramer’s points. He found it necessary to deprecate me as self-important and “arrogant.” I could take that, but not his unimaginative and inaccurate claim that I had a “snotty attitude.” His vocabulary was inadequate to furnish him the right words; I have my faults but that is not among them. (Nor was I paying him generously to insult me in front of the court and the media.) His desire to soften the impact of some emails the government would produce and represent as, to say the least, high-handed was understandable. But I thought there were better ways of challenging the contention that I was an unpleasant or overbearing personality. To start with, none of the prosecution witnesses who knew me would have made any such claim. The only one who was asked was the doorman at our office building, who said “Oh yes, he is always very courteous.” Genson’s stammering, mispronunciations, confusing word-substitutions, and syntax that would have made Casey Stengel seem like Thomas Hardy, all horrified me, but he made his points, and was humorous, comprehensive, and clearly appeared to be well liked by the jury. Both his joviality and his infirmity, which he had gallantly overcome through a long career, would have endeared him to the jurors at least at the start of the trial.
Genson had a technique that was a little like a vaudeville act, and his specialty was confusing jurors through obfuscation, ingratiation, and muddying the waters. I was concerned about whether such a shtick would hold up through a long trial, and I was rightly confident that Genson had no other method. This was a case that required precision to extract the facts from a vast mass of contending charges and defences.
Generally, Genson was commended on a good start. We had given notice that there would be an argument. Gustave Newman, the legendary New York barrister who had just celebrated his eightieth birthday and had barely recovered from a bout of pneumonia, followed, and impressed the court with a powerful address that presaged the great attack on Radler that was to come. “Would you buy a used car from this man?” was part of his theme. His tall, slender, white-bearded, well-accoutered appearance and powerful voice, as well as his almost Old World courtesy (“Pardon my back,” he would say when he turned to produce an exhibit), made a strong impression. Benito Romano followed for Peter Atkinson, and was quiet, diminutive, undemonstrative, and made no impression. This was carrying the co-defendants’ attempts to fly below the radar to a newly reduced altitude: Romano mounted what was almost a stealth defence. Apart from asserting his client’s innocence, he gave little indication of what line he would follow to establish that.
The defence opening arguments closed with Ron Safer’s very powerful presentation for Mark Kipnis. He waved about “Mark’s anti-fraud pen” as he marched to and fro, as if holding up a battle standard, and repeated the mantra: “Mark did the best he could with the information he had.” Safer spoke with great emotion in a very Chicago accent, and moved around the room almost majestically, unlike Cramer, with his irritating cobralike lurches. Safer, on this and future days, almost held the court spellbound at times. He hinted still at his desire to separate from the others, especially me, as the principal recipient of the amounts at issue. But at least he went to some length to debunk the prosecution generally.
SUN-TIMES MEDIA GROUP (STMG), as Hollinger International was now called, had just announced a further cash settlement with Radler, who repaid his CanWest non-competition payment, which was not even alleged to have been illegal. Radler had also committed the private companies he had created from former Hollinger properties, without serious consultation with any of the other shareholders, to repay sums to STMG. Much of this repayment was simply monies owed from the original sale, but much of it was involuntarily paid by other shareholders, to clean up Radler’s own liabilities to STMG and the SEC. This was all dressed up as a massive financial coup for STMG, to distract from or disguise the more than $100 million net cost of the Special Committee process and the 90 per cent decline in the stock price.
The government, buoyed by this loudly proclaimed bit of financial flim-flam, called Gordon Paris as their first witness. He was to explain the corruption he found and repaired but was destabilized as a witness within a few minutes by one of Genson’s better tricks. In the guise of conducting a voir dire, approaching the witness to go over a document with him as part of an objection, early in Sussman’s examination, Genson wobbled up and, hovering and nodding over Paris at a range of one foot and malapropistically interrogating him, was understandably unnerving, especially given what Paris was selling and he wasn’t fast on his feet at the best of times.
Paris scored no points at all, and Sussman abruptly handed the witness to the defence. Greenspan cross-examined. The intention was to use Paris’s cross-examination to start laying out the enormous amounts of money made and spent by the usurpatory regime, who were completely without newspaper experience. We wanted to expose their low motivation, greed, and incompetence.
It was obvious early on that Greenspan’s unfamiliarity with American procedure was going to be a problem. Sussman stood straight up from his chair like an emerging champagne cork on every question, his rectangular head and large nose suddenly appearing right beside Greenspan, very distractingly, putting his objection. Greenspan appeared to have no idea how to deal with the objections technically, and no idea whether they were well founded or not. Sussman was like a hyena nipping at the legs of a lumbering beast, and unfortunately, to some extent, Greenspan played his part of the role. He privately blamed Genson for not warning him about American procedure, and Genson seemed to me consolable that the much-announced star Canadian barrist
er was encountering such difficulties.
At that, Greenspan elicited from Paris the fact that he was paid $17,045 per day in 2003 and $15,805.17 per day in 2005 (there was a legal reason for not getting into figures for 2004), but the impact of these revelations was diluted by the blizzard of objections, most of which were sustained after several sidebars and voir dires. Here we encountered the problem of admissibility of evidence subsequent to the contentious events. Sussman came marching forward, holding the Breeden report over his head, jauntily assuming that he could get it into evidence. Defence counsels’ well-prepared storm of objections prevented this, as we prevented admission of the joint agreement the former Audit Committee members had signed with the SEC to avoid prosecution (almost as complete, if not as voluminous, a fantasy as the Breeden report). We also excluded Strine’s infamous judgment and later the effort to call evidence from the Ravelston receiver and the stated reasoning of the more antagonistic Canadian judges.
This was a win, but it had mixed consequences for us. A strong motivation for the determination of Breeden & Co. was their need to get me convicted on at least some of the charges in order to save themselves from my libel suits in respect of the Special Committee report and the annual report (Form 10K) of $1 billion each, launched in Canada, where, contrary to practice in the United States, the civil tort of defamation is a serious threat. Those suits would be lethal were I acquitted. Our other suits and counter-suits were also in the billions, to be able to weigh it in judging the motives of my accusers.
The concern about giving the prosecution any opening to introduce Breeden’s report, Strine’s remarks, and the reasoning (if such it could be called) of the more antagonistic Canadian judges, especially Campbell, prevented my lawyers from exposing the full perfidy of the usurpers who followed us and lined their pockets while destroying the shareholders’ interest. We could not demonstrate how they had used the companies the defendants had built to destroy the defendants. The prosecution initially was going to lead with a line of reasoning that would have allowed us to ask Paris and other witnesses for the prosecution a number of deadly motive-revealing questions. But on seeing where it would go, the prosecutors decided to pitch that approach in one of the sidebars. On looking over the transcripts of those sidebars, it seemed to me that had my lawyers shown more mental agility or at least argued with more clarity, we could have introduced a number of questions leading to motivation without stirring up the ashes of the Breeden report. But that is Monday-morning quarterbacking. We won, on balance, in this exchange, but it left us with a truncated argument.
Conrad Black Page 44