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, sitting 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.
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 barrister 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.
Eddie Greenspan’s debut had not been auspicious, and there were audible concerns at the defence tables, though in their desire to pretend they were in a different company, if not on a different planet, from me, the other counsel gave Paris almost a pass. He had not been a successful witness, but my star lawyer was obviously vulnerable to the prosecution’s hyena attacks. It was curious to see Gordon Paris again. I had grown accustomed to his swagger at Breeden’s side. At the trial he was diffident, inarticulate, and had no presence at all, not even the upbeat cheerfulness he had had when I first knew him, as a bond salesman for the Toronto-Dominion Bank.
After Paris’s ineffective opening, the prosecution brought on a sequence of buyers of Hollinger International assets, all primed to say that they had not requested and did not care about non-compete agreements from individual Hollinger executives. None of them mentioned me, other than saying that they had heard of me, but that we had had no contact of any kind. All the negotiating was with Radler and Mark Kipnis. The principal lawyer in two of the biggest deals, Jim Henson, a courtly southerner, made it clear that he found Radler vulgar and abrasive.
The buyers were a pretty phlegmatic group. Mike Reed of Community Newspaper Holdings Inc., who had paid out more than $500 million to us and was subsequently dismissed from his job, in large part, no doubt, because he was taken over the barrel by Radler, was dismantled quite effectively by Genson. While Reed said he did not want the executives’ non-compete agreements, and started out rather jokily responding to Genson, he acknowledged that in the non-competition clause, by asking for “affiliates” as well as the vendor company, he meant the executives and corporate affiliates of the vendor company. (In the midst of the trial, the Chicago Tribune changed hands, along with its television and radio and cable properties; the Los Angeles Times, the Baltimore Sun, and Newsday [Long Island]; the Fort Lauderdale, Hartford, and other newspapers; extensive real estate, and the Chicago Cubs, for $311 million, plus a special dividend and a large participation by the Employees’ Share Ownership Plan, though the buyer assured the press that he would dismiss a large number of the employees. This illustrated the tremendous payoffs Radler had negotiated in the sale of these community newspapers. The newspaper industry had gone into steep decline; we had started into and out of the business at good times, and Radler, however objectionable they found his personality, had dealt very cleverly with these provincial buyers.)
Gus Newman and Ron Safer further extracted that Reed had signed an agreement stating that the non-competition clauses were required conditions of sale. He wanly said that he did so because it didn’t cost him anything, but Safer eventually produced the fact that the funder of the deal, the Alabama state pension fund, had required these clauses as a condition of advancing the money to make the acquisitions. Reed, though well-rehearsed, had not scored for the prosecution.
The representative from Forum, owner of the leading newspaper in North Dakota, was a straightforward but cautious Midwesterner, even refusing to let it be known if the company had borrowed money to pay us $14 million for the newspaper in Jamestown, North Dakota. He, too, was clearly taken for quite a sleigh ride by Radler, but at least he had held his job. He, too, claimed that they had not cared about competition from individual executives but could not adequately explain why he wanted the inclusion of “affiliates” in the language of the agreement. He, too, was routed on cross-examination, as he acknowledged that Radler had bought, just after the non-competition agreements expired, a newspaper in a neighbouring county to Jamestown.
Radler had made huge gains for our shareholders with these deals at the very brink of the great newspaper decline. The buyers had not done their due diligence properly and had no idea that the senior executives of Hollinger International – key players in creating and then maintaining these properties – were in fact employees not of International but of the ultimate parent company, Ravelston. Since a subsidiary could not bind its parent, the “affiliates” reference in the non-competes did not achieve what they had hoped. Radler had certainly not disguised these arrangements, which were publicly disclosed. Having been carefully prepared by the prosecutors, and angry at having been clearly foxed by Radler into over paying, they all repeated their lines, but they all disintegrated under serious cross-examination. Genson and Safer, and to some degree Newman, accomplished this. Atkinson, who was not mentioned, continued to fly just above the treetops, sharing with his counsel the fantasy stratum that this would liberate him from suspicion.
The best of the community newspaper buyers was David Paxton, an alumnus of Oxford University from Paducah, Kentucky. He answered all questions in a forthright manner and acknowledged that there could have been some utility to the non-competition payments to executives after all. The buyers had not made the case the government promised, and Newman, in particular, had made the point that whatever the buyers now claimed had been their wishes eight years before, they had signed binding and enforceable contracts containing a precise wording about the contested payments, and their verbal revisitation of the deals after government tutorials could not trump signed written contracts that had been publicly disclosed and discussed for years without any comment from them. The non-compete payments in each case had been stated to be “conditions of closing.” This was a promising start for the defence.
GUS NEWMAN, ALWAYS A GENTLEMAN, committed an astounding breach of professional etiquette by approaching me, another attorney’s client, and expressing his concern about whether Greenspan, for whom he said he had great respect, could carry the weight placed on him in the trial. I answered noncommittally but made hopeful sounds. Barbara had been watching the manoeuvrings and facial grimaces of the other defendants’ counsel whenever Greenspan was on his feet and thought that Newman was simply reflecting the concerns of all the other lawyers. I had the same concerns, but I didn’t think it was for Newman to raise it with me, and suggested he raise it with Eddie directly. He did so, at a stormy Easter weekend luncheon that offended Greenspan and raised his paranoiac instincts but did not advance the cause of his adaptation to American courtroom rules.
Greenspan told me that the reason for Newman’s criticism was concern that Mrs. Newman was unwell. She may have been, but she appeared pretty chipper in her many appearances at the trial. And I think the reason for Newman’s concern about Greenspan was that Greenspan’s ponderousness and vulnerability to Sussman’s harassments warranted concern.
At the end of the parade of buyers, we had made the point that non-competition payments were normal and regular in the newspaper industry, frequently paid to individuals, and that these buyers wanted comprehensive guaranties against competition from the companies and people who were the vendors in these cases for good commercial reasons. It had gone quite well, and some journalists who had been at Delaware and presumed that such payments were a scam were now of another mind.
The government thought it could make its financial case, and especially the allegation about misusing corporate funds, with the infamous trip to Bora Bora, with Fred Creasey. I was pretty confident that they would find him a disappointing witness. As always with government witnesses throughout this long trial, they performed quite persuasively as long as they were repeating back the catechism they had been taught to answer prosecution questions.
I knew that Creasey was a man of collapsible nerves. He had fainted to the floor of his office when informed that the SEC wanted to interview him, though he was not suspected of wrongdoing, and had never returned to work, being mentally unfit for more than three years. Though easily frightened and a pessimist, he was diligent, honest, and would not lie under oath. Mark Steyn and others thought that he exuded an air of natural believability when under direct examination and felt he was a strong prosecution witness. I assured them that he would be just as believable answering our questions and would be completely useless to the government and that this would be clear after an hour’s defence questioning, because the charge was unfounded, and Fred would tell the truth.
Creasey had recorded that our trip to Bora Bora in 2001 had cost the company $565,000 because he divided the entire cost of the aircraft operation, including salaries, the charter, and hangar rental by the proportion of the year that was taken up by the trip. Of course this was nonsense, since the fixed costs were inevitable and would have been incurred if the airplane had not moved one inch in its hangar.
Greenspan took the cross-examination, and I thought he performed well. Creasey retreated at speed from all the overexposed positions to which the government had led him. Yes, I could have chartered a comparable plane for a quarter as much. Yes, I paid half the cost, as he had calculated it, which was more than twice the variable costs, which were what were normally charged. Yes, I had been assessed a taxable benefit for much more than industry practice would have indicated. Yes, the company made $125,000 transporting me. I thought Greenspan did particularly well with the exchange that ended: “I’m sorry. I thought that when you said that you were an expert in corporate finance, you meant that you were an expert in corporate finance.” Creasey: “Not necessarily.” Greenspan concluded with one of the more memorable lines of the trial: “You provided Mr. Black with the most expensive airplane trip in the history of manned flight.”
In their redirect examination, Julie Ruder introduced a new tactic, which was to become tiresomely familiar. “Where in this document do you find any reference to …?” Anything could be inserted here, from supposedly unauthorized non-competition payments to the remotest and feeblest parts of the prosecution’s case. Since she was asking non sequiturs, the answer always had to be “nowhere.” A long sequence of these questions, which I told some members of the press would eventually include references to my participation in the assassination of Abraham Lincoln, as well as my habitual severance and boiling of little boys’ heads, would give way to a further series of: “If you had known of …” and all the earlier horrors were repeated, more or less in order, “would that have altered your judgment of” whatever. It was the shabbiest, most sophomoric device I had heard in decades, and visibly made little impact on the jury, whose members were not electrified by Creasey at any point.
Mark Steyn changed his tune and agreed with Theresa Tedesco’s overly harsh view that far from being a threat to the defence, Creasey was an Elmer Fudd figure. Mark added that Hollinger should have gone more quickly out of the newspaper business and into aircraft chartering, an immensely remunerative form of commerce on this occasion. Fred Creasey left as he had come, a beetle-browed, beleaguered but good man who had achieved negative yardage for the prosecution because he did not lie under oath and was never snide or malicious.
The first week in April produced good press responses to the Creasey appearance, and a pleasant diversion when the eighty-one-year-old Dominick Dunne, an acquaintance of Barbara’s from the 1970s, came to town and Barbara, Alana, and I had dinner with him. Alana continued to be the great star of the trial. Her lovely appearance, beguiling manner, attentiveness, charm, and complete lack of interest in the press conquered almost everyone.
AFTER THE UNSUCCESSFUL Easter luncheon between Greenspan and Gus Newman, I spoke to Genson and Martin about Greenspan’s problem with American procedure, I thought that he did well with Creasey. Genson clearly wanted the cross-examination of Radler, but Greenspan had earned that. It was agreed that Genson’s partner, Terry Gillespie, would give Greenspan a crash course on procedure.
I had a cathartic meeting with Greenspan in our little lunch room in late afternoon. I asked him very calmly to “raise my comfort level about your ability to master U.S. procedure.” He flared up and threw all the toys out of the baby carriage and announced he would return to Toronto at once. Barbara, when I told her, thought this was a golden opportunity not to be missed, felt there were better American lawyers at our table that were not being used, and had to be restrained from paying for a private flight to take him home that day. I ignored both her and Greenspan’s suggestions and urged him to compose himself and just give me more confidence that we were turning the corner on his adaptation to this court.
Because Greenspan had been the most famous lawyer in Canada for many years, it was both touching and worrisome to see the sudden erosion of his prestige. I was now quite accustomed to the sudden collapse of a prominent individual; seldom had a prominent person’s status and reputation been destroyed more quickly than mine. But I had at least carried myself with outward dignity toward everyone, even the diminished number of confidants and did not impute animosity, much less conspiracy, almost indiscriminately.
Eddie Greenspan’s methods were far too ponderous for the rapid cadence of American trials. Generally, objections are just ignored by defence lawyers, who proceed whether the judge sustains or overrules. Greenspan had been accustomed to the Canadian method of arguing over each objection, which completely broke his rhythm.
Sussman, overconfident as always, referred to Greenspan as “an old water buffalo” and said to Jane Kelly that I would be convicted in the minds of the jury before Radler even took the stand. That was not how it worked out.
The next phase of the trial consisted of very lengthy videotapes of Torys lawyer Darren Sukonick and a former partner of that firm, Beth DeMerchant. Videotape depositions consist of a fixed camera on the face of the deposee, who appears in limbo being questioned by a disenthralled voice from an invisible source. When you are watching a large screen with the close-up of a sombre Canadian accountant or lawyer such as Beth DeMerchant talking for five or six hours straight, it becomes almost humorous in its monotony. A silent hum of boredom descends over the courtroom. After about three hours of videotape, the deposee could have said she was a terrorist from Sri Lanka and no one would have noticed. The judge seemed to use much of the time to get papers on her desk cleaned up and fiddle with the two computers on her desk. At least, unlike various jurors and counsel, she didn’t doze off. The tapes had been taken in Toronto in February, and edited by joint agreement. It was never clear to me what the government thought it would achieve with this. Both lawyers expressed confidence in the integrity of Atkinson, their contact person in our company. (Sukonick and DeMerchant were later investigated by the Law Society. I was never overly impressed with their imagination, and some of their advice was incorrect, but I don’t think they were unethical or negligent. The singling out of them, as well as the Law Society’s rather banal allegations, seems to me to be shabby and tokenistic placation of opinion by the Toronto legal establishment, at the expense of two relatively defenseless scapegoats.)
The issue was whether we had tried to withhold disclosure of the CanWest non-competition payments. Torys had advised us that we need not disclose them, so we didn’t. The U.S. firm Cravath, Swaine & Moore, through Bud Rogers and Paul Saunders, the next two witnesses, advised us that we must, so we did, four days after receiving their definitive advice. This was not much of a case for a cover up. Rogers and Saunders both greeted me cordially. They confirmed both the advice they had given and our quick follow-through on it. Saunders had acted for me in the Hanna Mining affair in 1982, and we had remained in occasional contact since. He was an ascetic, austere, painfully fit, and thin man with an inflexible formality, like a retired Marine colonel. His cordiality to me now was carefully calibrated, in the subtle manner of the chief professional servants of the New York financial establishment, and was conditional, curt, and even tentative. He was a cold-blooded follower of the tide of events, a sand shark serving larger and fiercer fish. If I had had any need of a barometer of my status, he could have provided it.
It emerged clearly from all the lawyers that we had faithfully tried to follow exactly the disclosure regulations, irrespective of our own perceived convenience. A month into the trial, most of the press had backed off a long way and acknowledged that it was a much less clear-cut case than had been represented in government and Breeden-sponsored leaks and allegations. My former editor at the Globe and Mail’s Report on Business magazine, Margaret Wente, who was strangely nasty in her written references to Barbara and me, though cheerful when we actually met, wrote that while she hoped that I would go to prison, she now doubted that I would. Given her animus, her premonitions made her a hopeful weather vane. The prosecutors had not laid a hand on us. None of the community newspaper buyers had ever had any exchange with me, and I was not mentioned by the Torys and Cravath lawyers. And we had clearly won the arguments about the legitimacy of the non-competition payments and the response to legal advice.
While the lawyers appeared by video, I launched a side offensive in Toronto, and Peter White published a letter I had received from loyalists in the former Hollinger International exposing Voorheis’s desperate effort to sell Hollinger Inc.’s super-voting rights to STMG (again, the former Hollinger International). Stan Freedman represented us at the annual meeting of Hollinger Inc. and posed a series of questions to Voorheis, which he completely failed to answer, particularly why he had fiercely opposed the Hollinger Inc. privatization two years before and there was now a 95 per cent deterioration of share value.
Voorheis had also made erroneous representations about imminent realizations on litigation to Richter (the Ravelston receiver), which re-elected him despite his failure and his self-overpayment, as Richter too was overpaying itself to strip the carcass of what it was sworn to protect, and Richter too was a puppet of the prosecutor. The vandals had to protect one another: it was a brotherhood. Sussman wanted Voorheis in place because of his ability to aggravate me and destroy what little was left of the value of Hollinger Inc. assets. We at least attracted press attention to the stunning collapse of Hollinger Inc. since we had been betrayed by the Ontario Securities Commission on the instructions of Breeden in March 2005. The only hope for salvaging anything for the shareholders or bondholders of any of the former group was in our complete acquittal, and swift reassertion of control and sweeping out of the parasites.
The prosecution’s next try was with the auditors, and they brought in Marilyn Stitt (of KPMG), a solid professional who would not spin her testimony. The direct examination was brief, designed to incite the inference that the auditors had been misled by the management, though this was never asked or stated. It was insinuated from very bowdlerized extracts from the auditor’s professional handbook that implied it was virtually up to the management to audit itself.
The defence counsel quickly wrung from her (with no reluctance or evasion from the witness) the extensive sections of the handbook that required auditors to do a great many things that gave the jurors a clear idea of the scope of an audit. More valuable, she confirmed to Genson that when she and other KPMG people had visited the Hollinger International Audit Committee on February 25, 2002, it had been confirmed by Jim Thompson and Marie-Josée Kravis to the satisfaction of the auditors that the contested payments that had started this landslide of events had been approved. Genson and other defence counsel walked Stitt through her notes of her and her colleague Pat Ryan’s meeting with the Audit Committee.
Pat had explicitly stated, as Stitt’s notes of the meeting revealed, that KPMG wanted the Audit Committee’s confirmation that it had approved the (later) contentious non-competition payments. Thompson nodded and Kravis remained silent. Richard Burt was not at the meeting. The auditors concluded that they had their confirmation. Marilyn Stitt assured the Hollinger Inc. Audit Committee of this the next month.
The fact that the prosecutors had ignored this key meeting completely, and had tried to misrepresent the nature of the auditors’ obligation to the client, did not resonate well in the court. Again the press took a step back, almost unanimously, from their preconceptions of the guilt of the accused. Marilyn Stitt would not lie to please the government and answered a long series of questions from defence counsel clearly and truthfully, and very helpfully to the defence. The government case had been set back by the cameo appearance of the auditor.
After nearly six weeks of trial, the government had not begun to make a case, and I had scarcely been mentioned, apart from the foolishness about Bora Bora. Despite the implicit claims of the co-defendants to be mere bystanders in a dispute between the U.S. government and Radler and me, they had all been heavily involved with the buyers of the community newspapers, or with the lawyers on disclosure matters, or with the auditors. I had not. Cramer started out comparing us to bank robbers and street thugs. At this point, I appeared to be detached (as I was) from controversial matters, and Mark Kipnis, Peter Atkinson, and Jack Boultbee appeared to have been preoccupied with serving the letter of all laws and regulations (which they were).
Sussman in particular, impossibly thin-skinned, and egocentric, was stung by press criticism, including repeated disparagements from the Chicago Tribune and local television and radio stations, and he reacted peevishly to many of the journalists. The British press had come for the opening, would be back for Radler and for the end, but never really followed the case. The Daily Express representative, a woman with a piercing East End accent, offered Mark Steyn £1,000 if he would take Alana out and pry loose secrets from her. If Mark were so inclined, and if Alana were susceptible to such overtures, Mark might have taken the initiative on his own account and published them himself.
Even the Sun-Times had become almost impartial after hearing the prosecution’s weak early efforts at incrimination. Among the more publicized moments in our press relations were Barbara’s descriptions to Alana of two journalists trying to eavesdrop on them as “vermin” and of another nosy journalist, when speaking to Alana and me in the elevator leaving the courthouse, as “a slut.” She was using the word as a general derogative in the way that “whore” is sometimes used. In both cases the journalists were going beyond commendable enterprise, and though Barbara’s comments were intemperate, they were, I am afraid, le mot juste. They were widely quoted.