I found his rather smug comments about her uncalled for, given some of his own performances, including the immediately succeeding one in which he managed to make Maclean’s magazine publisher and former National Post editor Ken Whyte seem dull. It was an unnerving day, made more so by my attempt to take a walk at lunchtime, when I was pursued by a number of appalling photographers, terribly overweight, faceless louts whose cameras substitute for and obscure their features, unspeaking, always retreating before you after they have run after you. There is something primitive and barely animate about them, and in swarms they are like a great mass of Jurassic rodents, grunting and heaving.
There had been an absurd scene over my venerable and colourful houseman in Toronto, Werner Jankowski, who loyally appeared in Chicago twice and was ready to be a witness that, as far as he knew, I had not looked at the boxes when they were in our house. I warned Greenspan and Genson that he couldn’t possibly claim to have watched them all the time, particularly after he left the house for his 8 p.m. bedtime, and that because of his endearing Germanic accent the whole affair would become a Colonel Klinck farce. Barbara stalked out of our claustrophobic little lunchroom after saying what an insane idea it was, and Genson drove his electric tricycle around in circles, remonstrating with me. I ignored it, apart from saying that if he had a grievance with my wife he could take it up with her and that antics like this were not professional. He always cooled down quickly, and graciously called me to apologize later. I thanked him and said that there was no need for that. I thought we had a won case, but my counsel continued to worry me.
I had arranged for Donald Trump to come to the trial to debunk the birthday dinner issue and he was much anticipated. This, too, dissolved into farce. I couldn’t reach Greenspan for advice. I wrote a letter to Trump inviting him to the trial some days before and faxed a copy to my lawyers. In the usual, insufferably amateurish ways to which these fire-wagon single serious partners were addicted, he and Genson only looked at it at the last minute and decided that my letter could be harmful. Their subpoena of Donald was withdrawn. It would have been less irritating if I had not again been given the distinct impression that my hypersensitive counsel were rather pleased to assert themselves over the client.
No one should imagine that the rapine of American lawyers is different in character from that of Canadian lawyers. Some genuinely care for the client more than others, and Greenspan was better than most in this regard. But lawyers are unaccustomed to the real world; they are friendly with prosecutors. Unless they commit heinous crimes, they never get a bad press, and their world is a circumscribed one where the client is a miscreant who has bumbled into the web of the legal system and what happens to him, as long as the lawyer is paid, is more or less beside the point. All the Robert Redford, Gregory Peck, John Travolta, and Tom Cruise dramas about conscientious lawyers going broke for a cause or a client are bilge.
As the trial progressed, I read a number of apposite books, including about the parliamentary trial of Warren Hastings, and I reread Franz Kafka’s The Trial for the first time since I was an undergraduate. Kafka’s summary of the lawyers in his otherworldly ordeal was familiar: “The same old exhortations would begin again, the same references to the progress of the petition, to the more gracious mood of this or that official, while not forgetting the numerous difficulties that stood in the way – in short, the same stale platitudes would be brought out again either to delude him (the client) with vague false hopes or to torment him with equally vague menaces.” I had thought Kafka a novelist all these years. But if history repeats itself as farce, fiction returns as journalism. By the time I left Chicago, I thought Kafka clairvoyant.
Justice in the United States (and Canada) is like fishing. The system casts a net and occasionally drags in a big fish for a show trial to enhance the career of a prosecutor and give a placebo to the grumpy masses upset at the uneven distribution of wealth in American society. In our case, as in Hemingway’s ultimate masterpiece, The Old Man and the Sea, there was nothing left after the sharks had finished, when the catch was brought to shore. The sharks, Breeden, Rosenberg, Voorheis, even Walker, and the others had eaten the great Hollinger fish to the bone.
It is a terrible thing to feel so alone when facing the greatest crisis of your life, especially against such formidable opponents as the U.S. government and much of the international media. My wife and daughter, sometimes my sons, were all there and all were magnificent. They all thought my lawyers incompetent and unreliable. They were a little severe, but there was not much I could do about it now anyway. We were almost down to closing arguments.
We got into specialist witnesses through the week of June 4. Genson had a very good specialist on New York real estate, who completely surpassed the catechetical witness Sussman had produced. Atkinson had an excellent Chinese-Canadian tax law professor who explained how non-competition payments work in Canada. She was very plausible and helpful, and rather ingenuous. Ron Safer produced Pat Ryan, the long-time KPMG customer’s man, a charming James Garner lookalike as a hostile witness, to lay bare the dishonesty of the Audit Committee. Pat was cool and definitive. He and Marilyn Stitt had the assurance they sought when they met the Audit Committee in February 2002. They had not been misled by the management; they had been assured by the Audit Committee that the contested payments were approved and appropriate and that the disclosures were correct. Safer also had a very impressive professional witness, a forensic accountant calling himself Mr. Funk, who was amiably unshakable under Cramer’s heavy-handed efforts to rattle him. His scrutiny of four hundred thousand pages of documents revealed a conclusion “inconsistent with fraud.”
On Monday, June 11, John O’Sullivan, former editorial page editor of the London Daily Telegraph and Times, the New York Post, and National Post, and Bill Buckley’s successor as editor of the National Review, took the stand and was extremely effective about the supposedly criminal birthday dinner for Barbara. The defence rested the following day; Sussman brought in a couple of expert witnesses on arcane subjects, and very suitably, the last of them, on an issue concerning Kipnis, was torn to pieces by Ron Safer in less than three minutes. “You don’t know, do you?” Bumbling answer is followed by: “That wasn’t my question. You don’t know, do you?” “No.” “No further questions of this witness,” as Ron walked away, flipping his clipboard and somehow managing to show respect for the judge, neutrality to the witness, and contempt for the prosecutor.
CLOSING ARGUMENTS BEGAN on June 18 with Julie Ruder, who went on all day. She was by far the most effective of the prosecutors. Faced with evidence from the government’s own witnesses that the so-called undisclosed payments had been disclosed time and time again, she now abandoned her witnesses one by one.
You heard a lot of testimony from Darryl Sukonick, who is a very young lawyer at Torys. He was in his fifth year of practice…. And this non-compete was far from the only thing he was doing. I mean, he was telling you about seventeen-hour days. Paper flying everywhere….
The audit committee did fail the shareholders. They did. They should have read things word for word, sentence by sentence, paragraph by paragraph….
Mr. Radler told lies too. There’s no question about it. He lied to the special committee and he lied to the auditors and he lied to the government.
All the exculpatory evidence her own witnesses gave, she told the court, was misleading. The fact that there was so much evidence exonerating us was evidence of the cleverness of the crime. She had developed a new sort of evidentiary analysis, a psycho-forensic approach that could conveniently be used to justify the charges. In essence, she told the jury to disregard all the witnesses and look for the “why” in actions that were perfectly legal. Ruder said:
You have heard every penny is disclosed. Anyone in the world with a computer could log on to sec.gov and see exactly how much money Peter Atkinson got. That’s not what this case is about. It’s not about the fact that money was paid to Mr. Atkinson. It’s not about doll
ar amounts, it’s about the why. Why was that money paid to Mr. Atkinson. It says here that it was a condition to the transaction. That’s not true. And listen, if defence counsel wants to parse out the [contract] language and say “Well, it was technically a condition of the transaction because there was in the contract on page whatever a little subsection that says ‘Conditions of Closing,’” well, that’s part of the cover story too. That’s the paper trail that they left behind to be able to argue something like this.
In other words, disregard all the evidence and convict these foreigners because that’s what your government expects of you. As she stamped like an angry elephant all over her own witnesses, she also hammered the theme that the defendants were getting too much money, maybe not illegally, but too much. “Those management fees that International had been paying, that was a lot of money – we’re not claiming there’s anything illegal about the management fees. What we’re saying is that they are really really high. And the shareholders were also saying they’re really really high.” This wound into a patchwork quilt of selective examples of my extravagance in particular and my “unbelievable pay day.” Every string of envy and prejudice was being tugged as Ruder implied that I needed to steal to buy expensive items. This was just a dodge for not looking at the evidence, ignoring the witnesses, and deciding against the defendants because they were more educated and wealthier than the jurors; it was never put so crudely, but that was the only argument left to the government, and all that remained of Breeden’s infamous half-billion dollar kleptocracy. To paraphrase Mr. Shapiro, of his co-counsel Johnnie Cochrane at the O.J. Simpson trial, Ruder “not only played the social and financial prejudice card; she dealt it off the bottom of the deck.” The removal of the boxes was “truly startling.” (It’s hard to move offices without moving boxes, unless you carry out twenty-seven years of files loose-leaf.)
My mind wandered until I heard “It was dirty, ladies and gentlemen. It was dirty” and thought for an evanescent moment the spirit of confession might have seized this unlikely convert to straightforward rules of evidence. But she was speaking of an innocuous and unexceptionable act by the defendants. It was inexorable; she stood imposingly before the jury, like a battleship delivering broadside, raised her dinning voice, held up her two thumbs and forefingers touching and forming circles, as if portraying in digital zeros the credence that deserved to be attached to the prosecution’s case, and shrieked her ending. My wife and daughter both thought she was effective with the jury. I couldn’t believe them. We were watching the faces of the jurors as this monstrous charade was enacted and we all read something different.
The following day, June 19, Eddie Greenspan opened for the defence. The view that the jury did not like his tactics at times had been made clear to him by both our team and others. “I want you to know,” Greenspan told the jury, “that if at any time in this trial I have pressed a point too hard, if I have been too tough or aggressive, it is only because, I assure you, of my anxiety to make certain that no stone is left unturned to show you the innocence of Conrad Black … so do not hold that against Mr. Black.”
There had been a good deal of collaboration in his remarks, especially by George Jonas. But the continued effort to have Greenspan tackle the obstruction of justice issue was to no avail, as was the attempt to get both counsel organized to tackle properly the counts in detail, although Greenspan was considerably more organized than Genson. Not only did the prosecution have the final word of the trial, contrary to the practice in other sophisticated jurisdictions – they also took more time. Ruder spoke for almost an entire day. Her remarks were outrageous, but they were rehearsed, precise, and thematically organized. Greenspan spoke for only an hour and a half with a good fifteen minutes of that devoted to praising a clearly skeptical jury.
Oratorically, it was his best performance of the trial, and his observations on the credibility of Radler and the naked attempt to prejudice the jury through envy of the rich were elegant and to the point. Greenspan failed to blow up the thesis that Ruder had placed in the minds of the jury, that somehow all evidence should be ignored because the guilty act was something she surmised but couldn’t possibly prove – that we had all lied in order to get naïve buyers to give us non-compete payments that were really due to the company. She was saying, essentially, forget about the contracts the buyers signed – they didn’t mean them. Forget about disclosure of all payments – it was just a cover story. Forget about the huge profits the company made for shareholders and focus on something I can’t possibly prove – namely, that this rich man Conrad Black, who uses long words and historical references in his memos that are intended to mock the shareholders and ordinary people like you and me, organized a scheme to gull everyone: that the huge numbers of accountants, lawyers, buyers, shareholders who approved what was placed in front of them and reassured the defendants that everything was in order were wrong to have done so. It was a desperate gamble to try to evade the weight of evidence that had built up in our favour. For Ruder and her fellow prosecutors, there was no longer any downside in counting on the jealousy and ignorance of most of the jurors, because no alternative remained.
Nor did Eddie give the jurors sufficient context, as I had so often begged, for all these events that started with a battle between shareholders and a corporate struggle that had ended in a pyrrhic victory for the activists. Eddie read his concluding remarks. There was no suggestion of improvisation, nor of a mnemonic feat. But it was one of the most eloquent periods in the trial. He was vigorous, unargumentative, uninterrupted, and in good voice, and his contents were strong as far as they went, which was not far enough by half.
Eddie Genson followed. He started fairly well but drifted as the day went on. I later read his text, which was clear and very good, and compared it with the transcript. As the day wore on, they diverged more and more sharply. Genson has some cognitive disability that causes him to stutter, repeat, foul up, and mispronounce words, and misrecollect nouns or groups of initials. He never once in the trial sorted out CNHI 1 from the non-existent CCN 1 or some such, and was constantly attributing to me a receiver, as if I were bankrupt, instead of a monitor, who supposedly wishes to help conserve my means (as I do).
I can only conclude that he is so accustomed to guilty clients that he sees his mission as the creation of confusion, to incite doubt in the minds of the jurors. This was not at all what we needed at this point. What we needed was what we partly got from Greenspan – a declarative statement not only to incite a reasonable doubt, but to lay out the whole narrative of how the company had been hijacked as I was executing an orderly exit strategy from the newspaper business, and had been destroyed by the sponsors of the prosecution case.
Ungrammatical polemics were what we got instead. Genson had his moments and scored a lot of points, but it was not a great success. Trying to sum up the Bora Bora plane charge, he ran into heavy turbulence:
Genson: Conrad wound up getting the most expensive airflight to Bora Bora in history. He paid half a million dollars for something that wasn’t worth a third of that. And if they billed his variable costs or commercial costs – and then had to pay income tax on top of it. And Ms. Stitt, Ms. Stitt told us in that March 13, ’03 – in that March 13,03 submission that Ravelston and Inc. paid variable costs. That’s what she said in the submission. And, Dan, what is the – what is the – what is that, trip what? Do you know?
Mr. D’Angelo: Which one, Eddie?
Genson: Trip 1 – the audit committee meeting for ’03. I wanted to get – I want the jury to see that. I just misplaced it. I have it right here. I’m sorry. Black International Audit 35 and I’d like you to look at page 2, paragraph 1. All right. Now let me talk just briefly before I get into the apartment – well, let me talk briefly about the airplane, one other thing …
Finally, his years and infirmities caught up with him, and he asked for a deferral to the next day. This was granted by the judge, who was generally quite indulgent of the counsel, and condu
cted the case with exquisite courtesy throughout.
The next day, June 20, Genson finished relatively strongly, though he underargued and botched the box affair, but I could not imagine anyone taking it seriously anyway. Pat Tuite and Gus Newman alternated for Jack Boultbee and were strong. Both my sons were in court this week and, with Barbara and Alana, made a great physical and moral statement of solidarity, which was a matter of pride as well as gratitude. Never did I understand so well Freud’s statement that “My children are my joy and my riches.”
Then Michael Schacter concluded very powerfully for Peter Atkinson on Monday, June 25, and was followed by a tremendous tour de force by Ron Safer for Mark Kipnis. He tore the entire government case to pieces, one last time. The defence could not have had a better closer. The government had no case, and Safer pointed this out in ringing, apparently emotional, terms. He gave the likely motive for Radler having rolled over: that he was caught in the American Trucker payment and cut his sentence by pledging to destroy others.
Sussman, the stuffing having been knocked out of his case for a week by better and more persuasive lawyers than he, summed up on June 26 and 27. It was another wobbly and inane catalogue of false facts and erroneous suppositions. Why did Mark Kipnis do all this though he gained nothing from the non-compete payments himself? “Perhaps he wanted to be the next Peter Atkinson.” I could not believe anyone could subscribe to such rubbish. Like a clumsy sheepdog, Sussman careened around, trying to keep Atkinson and Kipnis in the group headed both to shearing and to slaughter.
What would prove to be the most contentious element of the instructions resulted from the government proceeding simultaneously on fraud allegations and the ill-defined offence of “a scheme or artifice to deprive another of the intangible right to honest services.” This statute had been devised to deal with abuse of public office (where bribes were taken but there was no direct harm to the public interest), but like so many other U.S. statutes, such as RICO, it had been warped into a catchment for miscellaneous complaints. The sponsor, Senator and future Vice President Joe Biden, who jammed it through in a twenty-three-word amendment on the eve of the Christmas holiday in 1989, called it a “temporary fix,” yet it was still on the books twenty years later. In his soporific wind-up, Sussman put up two demonstratives – single-word signs for HONESTY and INTEGRITY, as if he were leading kindergarten students out of the world of monosyllables. This was the signal that the prosecutors knew that their entire fraud case had collapsed and that the phantom offence of honest services was all they had, apart from the boxes.
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