THE GOVERNMENT FOLLOWED the burnt-out wreck of their star witness with Jonathan Rosenberg of O’Melveny & Myers, the associate counsel, and, with Richard Breeden, co-author of the infamous Special Committee report. His firm had made about $50 million on this case, and he had a bigger vested interest than almost anyone in guilty verdicts. He followed much of the proceedings from the overflow room upstairs, so intimately entwined with the prosecution were the Sun-Times acting management and Breeden’s Special Committee. Rosenberg was brought in as if as he were an impartial expert witness. We had arranged with the judge that Rosenberg would not comment on my non-appearance at the Special Committee and that we would not cross-examine him if he did not mention me at all in his testimony.
Rosenberg did imply high corporate wrongdoing, and at the lunch break both Eddies were flapping like Ibsen’s Wild Duck, swearing motions for mistrial and so forth, their and other counsels’ usual placebos. In fact, they negotiated a strong instruction from Judge St. Eve that none of this applied to me. It was one of her better moments at the trial, as she had refused to admit as evidence that I had declined to appear at the Special Committee at the time I went to the SEC in December 2003, and she rather eloquently emphasized my “absolute right to remain silent.”
Rosenberg managed to avoid being torn to pieces like the government witnesses who came in with official rods on their backs (testimony in exchange for immunity or a plea bargain), but he didn’t seem to accomplish much, either, once it was established that he was a party profoundly in interest. I thought it a disgrace that not one of the counsel asked how much his firm had made from their relationship with the Sun-Times Media Group, but the legal brotherhood held firm and avoided so indelicate a subject as fees in spite of my pleading. In the corridor, Barbara and I passed Rosenberg, the caricature of a self-important former prosecutor, and Barbara managed to get to the word “shit” in her sentence as we came abreast of him, and she directed that word at him.
After the break, Sussman demanded a sidebar and excitedly told the judge that “Mrs. Black uttered a derogatory word to Mr. Rosenberg in the corridor.” (I saw an instant transcript of these sidebars, meetings with counsel on the far side of the judge’s bench away from the jury, and inaudible to the court, on the monitor.) The judge asked what Sussman expected her to do about that. No coherent reply followed. Sussman was also running to the judge with some frequency about my having told the press no jury in the world would convict anybody of anything on the basis of Radler’s testimony, and my having told the Guardian, in an interview about Nixon, that the prosecution case “is hanging around their necks like a toilet seat.” (The Guardian had published excerpts of the Nixon book, and part of my deal with them was that I would give them an interview.) The judge asked Greenspan to ask me to be a little more restrained. Sussman could not take the needle for an instant, and it became a sport for many of the press and some of the defence group to send him up the wall.
The government case dwindled after this. They brought in my former groupie, Hollinger International’s vice-president for investor relations, Paul Healy, on May 21 as their closer. His little porcine face was so puffy it made his spectacles seem smaller, like those of a Stalin apparatchik, a little Breeden of the future, perhaps. Cramer in his opening remarks had said that Healy, on my instructions, had “dummied up and lied” when he certified that I was paying a fair price at $3 million for the unit on Park Avenue. He appeared with an immunity from prosecution, and filled the transcript with a false revival of the apartment allegation. We established that the company had had a contractual obligation to renovate, decorate, and furnish the unit and that I had volunteered to pay it myself after Healy claimed he was hearing some shareholders’ complaints about the unit.
We also established that I had paid $4.635 million to this end, that I had the right to remain in the unit as long as I was an officer of Hollinger International, and that I could block any sale of it, which obviously lessened its market value to the company. In fact, the company had only a partial interest, especially as the building did not allow corporate owners above the ground floor, and I was the trustee for its interest. Sussman at one point tried to establish that we were obscuring the “substantial reimbursement” for the $4.635 million it was the obligation of the company to pay (as the FBI agent who signed the false affidavit which secured the seizure of my sale proceeds must have known). Under intense objections from Genson, Sussman was forced to admit that the substantial reimbursement for my $4,635,000 was $2,200. Never in the whole four-month trial was the brazenness of the prosecution more vividly revealed. It was one of Genson’s finest hours. The judge did not comment, but Barbara and Alana and I agreed when we returned to our hotel that we would have been in despair if my credibility had suffered such a blow before the jury. This largely demolished the apartment issue, and Healy remained as the witness for the playing of the audio tapes of the 2002 and 2003 annual shareholders meetings. Healy had never been at a loss for hymns of praise, and a number of utterly obsequious emails he sent to me were compared with elements of his testimony and remarks to the FBI.
Healy appeared pretty much as he was: a maladjusted, scheming courtier, alternately fawning and snarling at the hand that fed him for so long. He was reduced to complaining that he had only made $10,000 per week even while he was clearly disloyal to the management. Mark Steyn recorded how he had flipped suddenly in late 2003 from my being his “favourite name-drop” to my instant, new status as a satanic figure, as he ingratiated his way into the entourage of Breeden, for whom he later worked, one of Breeden’s lesser acts of subornation.
The battle with activist shareholders had first surfaced at the 2002 annual meeting of shareholders and climaxed the following year. We couldn’t see that the prosecution gained anything by playing the audio tapes of the meetings in court. I answered all questions knowledgeably and courteously (the Ruffo intervention where he called me a “thief” and I invited him to leave was excised). Healy had called my performance “brilliant,” and confirmed that in his testimony, and we felt that we did have much of the benefit of my testifying without any of the disadvantages.
On May 24, Barbara and I returned to Toronto. Whenever I return to that house, I am instantly reminded of how much I have missed it. As it turned out, I would not be back for a long time. This was becoming a dreary pattern – of leaving a home not knowing when I would see it again, or not knowing that I would never see it again, as in both London and New York. We went back to Chicago on May 28, with Joan Maida and her sister and lawyer. She was preparing to rebut the obstruction charge, over the removal of the boxes. The government case was almost over.
On May 29 came the painful episode of watching the video film of 10 Toronto Street. This building had symbolized a part of my birthright since 1959, when I had first visited it. It had become a symbol of the Canadian establishment, the classic, columned, graceful former Bank of Canada stone building in the shadow of taller buildings, and I had had my office there from 1978 to 2005. Being ejected from it at the request of Gordon Walker by Justice James Farley was one of the many immense humiliations I had suffered in this horrible debacle. I was almost impervious to anything, but the film of the building was upsetting.
The infamous affair of the boxes was represented as the “corrupt removal” of material, contrary to a court order, and to impede the progress of a grand jury, SEC, or criminal proceeding in the United States. I had hoped that Greenspan would take on this count and George Jonas had begged him to as well. Though the charge was absurd, the penalties for conviction on this count could be very serious, and Greenspan knew the facts well, having already prepared the defence against any Canadian proceeding. (There was none.) The judge instructed the jury that no Canadian proceeding was relevant to this issue. But Sussman routinely implied and endlessly repeated that I had violated a Canadian court order, and despite my repeated interventions with Eddie Genson, this was not contradicted effectively. There had been no Canadian proceedings on this subject, and the endless implicit references to such proceedings by Sussman and Ruder, and instructions by Judge St. Eve to ignore such proceedings, incited the inference that I had already been found wanting in the local jurisdiction.
All that was relevant to a conviction on this charge was my knowledge of any official proceedings in America and a corresponding intent to impede any investigation by removing documents. As my office had been open for months to one and all, with inspectors and lawyers rifling through all the files, photocopying and seizing masses of material, neither Joan Maida nor I could imagine that after all these months any document pertaining to events at least three years earlier would still be virgin material. I had stopped going to the office on any regular basis for some time: the swarms of intruders were too irritating. Anything I had wished to remove I could have taken out in a briefcase or my pockets at any time.
Two pleasant security guards who spoke well of me personally were marched in to report the obvious, that they had seen me moving boxes. The film, some from new cameras, some from cameras I had had installed myself, supposedly made their case. A letter was faxed to Jennifer Owens (one of our Baker Botts Washington lawyers) on the day before the removal of the boxes, indicating renewed interest by the SEC in documents in that office. I knew nothing of that, as Jennifer and others would testify. Various documents were produced from the thirteen boxes of apparent significance to the case, and there were a number of agreed stipulations of fact on various subjects, including that I had handed over 124,000 pages of documents in response to five SEC subpoenas long before this incident.
This was another area where it proved impossible to introduce evidence of the sleazy practice of the government. Sussman had threatened Don Vale with drastic consequences if he appeared as a defense witness, to attest that I had had his approval, as acting president of the company, to remove the boxes. Don later explained this to the judge in a letter, but it had no impact on the verdict. Sussman also threatened Joan Maida, but Genson refused to adduce this in evidence. Prosecutors and the FBI tried intensively to intimidate our driver in New York, Gus Pedernura, with threats against his tax status and his visa to enter and remain in the U.S. (from his native Argentina). Intimidation of witnesses are routine, and apparently insusceptible to response. The FBI effort to muscle Gus was presaged by Healy’s drunken telephone call to him late one Sunday night in December 2003, during which Healy hiccupped uncontrollably as he laid out his threats and blandishments. It had come to this: Healy as trail-blazer for the FBI in the bribery and intimidation of honest people, unsuspected at any point of anything improper, lest they tell the truth about the chosen target.
The government finally rested on May 30. It seemed to all of us that they had not made their case anywhere beyond, or even near, the elimination of a reasonable doubt. Their witnesses who had attempted to incriminate anyone had all been torn down and exposed as liars.
WE WOULD HAVE TO CALL SOME witnesses for our own counts – the New York apartment, Bora Bora, the dinner supposedly for Barbara, and the nonsense with the boxes. Beyond that, there would be some specialty and expert witnesses. We were quite optimistic. The defence kicked off with Jennifer Owens and Alex Bourelly of Baker Botts, who effectively extinguished any idea that I knew the SEC had any interest in my documents, beyond my full compliance with their five earlier subpoenas. Laurent Weisel, an able young lawyer at Sullivan & Cromwell, originally from Montreal, testified to the same effect a few days later.
Joan Maida came next and was plucky and ingenuous, proud of sending out “Conrad Will Win” T-shirts. Genson brought her through fairly well, and then Cramer set upon her, bullying and engaging in a good deal of gratuitous sarcasm. Unfortunately Joan had not been prepared by our lawyers with any thoroughness. Rattled, she gave some regrettable answers, never admitting wrongdoing, but in places defensive or argumentative. The truth would have served me well but wanting to avoid traps, she froze. She had no idea what I was doing on the film when I pointed at the camera. And she seemed to acknowledge that it was improper to remove the boxes. The jury was laughing at her. At one point she agreed that the watercooler gossip was that criminal charges would probably be laid against me. Genson failed to assault the relevance of such evidence.
Being a shy person, Joan had not wanted to testify; the notion of standing up in court terrified her, and she did it only to help me. She was literally shaking in the corridor before going into the courtroom. Her sense of honour was outraged that I was being blamed for some low and cowardly act of hiding documents, which she knew to be false. Genson had sent her into battle with insufficient preparation. The problems with Joan’s testimony appeared to please Greenspan in some perverse way, as he had warned against calling her but had declined to give any assistance when she arrived in Chicago.
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 dollar 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 conducted 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.
Finally, it ended. The judge read the fifty-six pages of instructions to the jury, clearly enough but with no special emphasis on reasonable doubt and with a great deal of emphasis on fiduciary responsibility, to open the door for an honest services guilty finding. The different U.S. judicial circuits were divided on its interpretation, but Judge St. Eve, following the precedent in her circuit (the seventh), instructed the jurors that they were free to convict on honest services even if there was no economic harm to the company, nor any evidence of intent to harm. Breach of fiduciary duty, corrupt intent, and materiality were required. After Radler testified that the American Publishing payments were redirected management fees, this became very important. Defence counsel did not ask for a verdict form, which, in the event of conviction, would require statutory specificity on the grounds. Research had shown that such a form increased the likelihood of a guilty verdict. They relied (mistakenly) on the right to require a poll of the jurors if any guilty verdicts were returned. Thus, on three of the counts, jurors could find any of the defendants guilty without specifying which was the offense, and different jurors could find the defendants guilty of the same charge for different reasons.
UNSURPRISINGLY, THE LEGAL PROFESSION formally congratulated itself on what had just taken place. The judge made her little speech: “I want to tell the lawyers in here what a pleasure it is to preside over a case and be the judge on a case with such highly skilled lawyers across the board. The professionalism that you have brought into the courtroom, as well as your legal skills, are appreciated and it is a pleasure to be the judge on such a case.” The marshals’ mouths moved in synch with her words. They were clearly familiar with the homily.
Pat Tuite, author of the remark to Barbara and me that a trial is entertainment for everyone except the defendants, rose to take a bow for the cast: “And we want to express our pleasure to you for making this such a pleasant experience. I think I speak for all sides, Judge.”
Eric Sussman caught the bouquet and returned it: “You do.”
Tuite took the encore: “And we’d be glad to appear before you in any other case.”
Judge St. Eve responded: “See you back here.”
A last moment of shared jollity from Gus Newman: “I don’t know if she’ll admit me again!” General laughter all round. Rarely had I found the legal cartel so nauseating in its misplaced self-praise and conviviality. Safer and Greenspan, to their credit, abstained. Then the court rose on the afternoon of June 27.
I went back to the hotel for a nap, pleasantly interrupted by Julie Nixon Eisenhower, calling to thank me for my book about her father. Her last words to me were: “Justice will prevail!”
Alana turned twenty-five on June 28 and we had a rather successful party for her, with the Boultbees, and Genson’s flamboyant driver, who had got us to court on time every day for more than three months, and some of the younger lawyers. It started with dinner at an excellent French restaurant near our hotel and moved on to a racy nightclub. I walked back to the hotel, but the owner of the nightclub, a professed admirer of mine, had me escorted by the formidable young Carl Davis, the tenth-ranking heavyweight prizefighter in the world.
There wasn’t a great deal of social life in Chicago for us, and Barbara, especially, didn’t feel much like socializing. I had gone out to dinner most nights during the trial, often with Mark Steyn, but there were few people left in Chicago with whom I had that kind of a relationship. But during the trial, as has been mentioned, friends came a great distance to have dinner with us. It was a great comfort having the Jonases on the same floor of our hotel for a good part of the trial, until nearly the last day. This included Maya Jonas’s lovely seeing-eye black Labrador, the cheese-eating Daisy. It was almost like home, dropping in for a nightcap, and relieved the severity of the trial regime.
Tiny ceremonies of continuity throughout had reminded Barbara and me of what normal life was like: every morning she had put cereal in my bowl, though I often did not eat it until I returned after five o’clock. She bought a folding shopping cart and would walk weekly to do grocery shopping at the Treasure Island Food Mart. Even in such a modest gesture there reposed the hope and the conviction that we would again live like normal people and not constant targets of misguided prosecutors and all the avaricious litigants and malicious journalists who surged at and besieged us. I kept repeating, “The night will end,” but it often required prodigies of faith to believe it.
I walked almost every night along the splendid Oak Street Beach north of my hotel, and was always greeted by many anonymous well-wishers. The general tenor of press comment in Canada had turned quite positively, faced with the evident poverty of the government’s case. The Chicago media – where we had initially feared a mugging, especially from the Sun-Times, whose management was quaking in their shoes in contemplation not only of our acquittal but of the shambles they had made of the fine assets we left them – were fair. (Although Mark Steyn was fired mid-trial by the Sun-Times, for being too favourable to me, that paper played it fairly straight coming through to the end of the case.)
We all thought we had won the case, or rather I thought we all thought we had won the case; Alana subsequently told me she thought we would lose something, and Barbara, faithful to her profound rabbinical pessimism, later told me she thought we would lose on three or more of the counts. Once she saw Cramer in his opening, careening around the court room, raving about bank robbers, “I knew we hadn’t a chance.” (I had thought his performance so over the top and off the wall, it would backfire.) The hostility of both of them to Genson and especially Greenspan was very high. I spent a great deal of time trying to preserve civility in our camp. I did not want the press getting hold of internecine problems, though Mark Steyn, a surpassingly alert reporter, apart from his other talents, had a pretty good insight into what was happening.
Alana felt that Genson was courteous and oddly likeable, and that he was out of his depth but had done his best and worked very hard. Alana and Barbara both felt that Greenspan was a disappointment.
Up to a point, I shared their view. Greenspan had been very supportive in the early stages as the world I knew was crumbling, in 2003, and graciously came to Chicago to sit with me at the SEC as I invoked the Fifth Amendment in December of that year. He was invaluable when Williams & Connolly flaked off in 2005. He had underestimated the impact of health problems on his physical and intellectual stamina in a long U.S. trial. He was casual about his health and on one night fell into a diabetic stupor onboard a chartered plane in Toronto after having been with his daughter on her birthday at a big occasion in Toronto. He was cross-examining the next day and the plane had to be held late at night while my driver careened around trying to find a convenience store that had the food to overcome his condition. He had not done enough to prepare himself for U.S. courtroom procedure, and left us for a time as laughing stocks at the defence and prosecution tables.
He rendered great service in tearing down Kravis and Thompson, when other defence counsel were still pussy-footing about trying to pretend that I was the only person on trial. Those witnesses and their testimony were carried out and burned, and their ashes flushed into Chicago’s miraculous sewer system (like everything else in that muscular city, like the pectorals of a boastful teenager, the biggest and best water purification system in the world).
He did well with Creasey, and adequately with most of the others, but courted disaster with Radler before finishing well. His presumption that he could just slide into U.S. procedure like a duck entering a pond was mad. He was often plodding and obtuse, and unnecessarily antagonized the jury. He rarely asserted himself as chief counsel, never grasped the larger canvass the case required, to make comprehensible to the jury how this shareholders’ dispute escalated as it did and became a Breeden power-grab. He was immoveable in clinging to establishing reasonable doubt about the allegations, even after it was clear to George Jonas, Marc Martin, Ron Safer, and others that we had won that argument on fraud but not necessarily on honest services. He ignored my theory that we would have to explain in outline how, mistakenly and for discreditable motives, it came to be a criminal case at all, other than with Radler alone. It was terribly exhausting and frustrating to remonstrate with counsel all the time. The only way to get anywhere was to side with one of them on one of the many issues being disputed between them and extract a concession in return for tipping the scales. It was a daily return to freshman model parliament. Greenspan seemed as concerned with his own public image as with the case, as if the first did not depend on the second. He had promised a Churchillian performance, and did not come close to delivering one.
Greenspan would tell the Globe and Mail in an interview published on October 3, 2009, that he regarded his performance in our trial as a victory, taking some credit and vindication in the progress of my counsel who succeeded him, and implying that I had been responsible for strategic errors, a bit rich given that he would ignore almost all my suggestions (and having already falsely blamed my wife for intruding in the case in a National Post interview).
He had been an able lawyer, a genuine friend, and a true believer in the right of all to representation. The deterioration of such a man is objectively sad, and is made more so by the inelegance of his acts of denial and displacement of responsibility for his own shortcomings and aggressive paranoia. And it is aggravated by the fetid atmosphere of toadyism in his entourage of worshipful followers. Withal, he assisted me vitally in time of dire need, played a vital role in severely damaging the prosecution case, and was often a very entertaining sidekick. His time is passing; I wish him well.
Greenspan had selected Genson, a man whom I liked but who was devoted altogether to creating some doubt. He was quite effective when he caught Sussman in his many errors and sat, spread-legged in his chair, and crowed, “Objection, Judge!” (Because of his condition, the judge did not expect him to stand.) But when he had to make serious and coherent argument, he became the victim of what Dr. Johnson called the “disingenuousness of years” and incomprehensibility sometimes resulted. George Jonas perfectly described the chipper smile of satisfaction that he struck up when convinced that he had confused his interlocutor, without, as he thought, making it obvious that that is what he had done. George thought him “an obfuscatory shyster.” Toward the end of the trial, I rarely knew what line Genson was going to take, what witness was being called, and how they were being prepared – if at all. Had he accepted some of the help on hand from the younger lawyers and discussed with me his closing remarks, he might not have had what he (accurately) described in court as his “4.30 p.m. nervous breakdown.”
There was a melancholia about them. They both barricaded themselves from their own clients and colleagues, Greenspan by vanishing at various times during the trial and refusing to communicate; Genson by refusing to reveal his strategy to the client or colleagues, as if we were all opponents in a game of whist. Both, along with the eighty-year-old Gus Newman, were obviously near the end of their serious careers, and Greenspan had so failed to forge any relationships, he was lonely in his hotel. (He had had to move hotels because, he claimed, Jane Kelly had failed to renew their status at “the urban sanctuary,” and this contributed to the end of a fifteen-year professional relationship between them. Jane was, however, shortly after appointed a judge, which, from what I have seen, will raise the standards of fairness of the Toronto bench.) Greenspan had to import his daughter from Toronto to go to movies with him in the evening. “No one wants to hang out with him,” as one of the younger lawyers put it.
A TENSE TIME ENSUED, as all waited upon the doubtful jurors. There were a couple of calls to hear jurors’ questions, necessitating running the gauntlet of the assorted media. Finally, the judge realized there was no point in subjecting us to that, and there was silence from the court for many days.
The jury was deliberating on sixteen separate counts, including the three in which withholding honest services was the alternate charge in the fraud counts. The first count was the allegation against all the defendants of mail fraud because of a group of non-compete payments couriered from Chicago to Toronto. There was no possible doubt that such payments were routine in the industry, approved by the Audit Committee, and repeatedly publicly disclosed and discussed. The auditors and outside counsel were satisfied with all aspects of them, and the buyers, whatever their revisionism eight years later, after bullying from the Justice Department, wanted them and signed that they were conditions of closing. This was a straight attempt, retroactively, to criminalize normal and unexceptionable conduct, and to trump signed and disclosed contracts with extorted, ex post facto, oral testimony. The evidence revealed that as buyers we ourselves had paid obscure vendors non-compete amounts dozens of times, often a larger share of the purchase price than the payments objected to in this case. The implications of this attempt at criminal retroactivity were very serious for American business; if the prosecutors could do this, no businessperson was safe from having actions reinterpreted and charged as criminal, years after they were made public.
Counts 2, 3, and 4 were mail and wire fraud charges against Mark Kipnis only, and concerned documents he sent related to various community newspaper sales. Mark had not profited a cent from the payments involved, and had only done what Radler, as chief operating officer, had asked him to do. Everyone in the court knew Mark Kipnis was innocent, and even Radler said so. These counts were just an effort to bludgeon him into a plea bargain. The prosecutors, in their blood lust for me, were, as is their unvarying tactic, knowingly trying to obtain testimony against the chief defendant by intimidation of a relatively vulnerable and obviously unoffending co-defendant.
Count 5 was a mail fraud charge concerning the non-compete payment to David Radler of $4.3 million, in the sale of some small American newspapers to Community Newspaper Holdings Inc. (CNHI). The contract in question was binding, fully executed, approved by the Audit Committee, and disclosed publicly and in SEC filings. This was an assault on contract law. As Mark Steyn wrote: “To allow that a freely signed contract can be overridden by oral testimony from one party almost a decade after the event would be deeply damaging to the integrity of American business.”
Counts 6 and 7 were mail fraud charges against all of us about the non-compete agreements with American Publishing. This was a division of Hollinger International and was relatively inactive at the time the payments were made. Breeden, the Special Committee, and the prosecutors all represented the payments as the defendants paying themselves not to compete with themselves. In fact, the non-compete agreements only came into effect after each of us left the Hollinger group, and were still in force at the time of the trial, and applied to all affiliated properties, including those in Chicago. This did not prevent the prosecutors from histrionically claiming that we paid ourselves generously not to compete with the Mammoth Lake (Washington) Times, a total canard, as they ought to have known. More important, David Radler had said, from the start, all the way through, and at the trial that these were unallocated management fees that he alone redesignated as non-compete payments, and did not testify that I even knew of this redesignation. They were approved as management fees and reap-proved as non-compete payments, and did not cost the company a cent, given that the management fees were not in dispute. There was no evidence, ever, none, of any wrongdoing related to these counts.
Counts 8 and 9 concerned the CanWest transaction, which the government had originally charged against Radler and me, but withdrew in respect of us before the trial. They retained the claim that I had fraudulently included Atkinson and Boultbee as non-compete recipients. The prosecutors didn’t call anyone from CanWest, knowing that they would support the defence, as our evidence showed. These were the most substantial amounts Peter Atkinson and Jack Boultbee received, and the related charges were necessary to enable the government to represent them as sizeable profiteers in this great scheme to steal millions. These were among the shabbiest counts of all (wire fraud over a fax and mail fraud over a FedEx package). The government admitted that CanWest was an untouchable deal, that non-competes are standard in the newspaper business, and that the big recipients were unassailable, and they could not produce anything to contradict defence evidence that the payments to Atkinson and Boultbee reflected the wishes of the buyers.
Counts 10, 11, and 12 were against Jack Boultbee and me, and concerned the so-called “perks” – the trip to Bora Bora, the dinner on Barbara’s birthday, and the acquisition by me of the apartment in New York. These allegations were all riddled with holes by the time they went to the jury. Creasey and Healy when cross-examined, and John O’Sullivan under direct examination, had pretty thoroughly discredited them. The company made a good deal more from me than the variable costs on the airplane for the trip to Polynesia and back. The dinner was obviously a business occasion, and immaterial, and if it were a benefit to anyone, it would be Barbara (although she did not, in fact, enjoy it). I paid a third of it personally, to cover any nonbusiness aspect, though told by Radler and others that that was unnecessary. The evidence had clearly shown that the company had defaulted on its obligation to renovate and furnish and decorate the apartment, that Healy had claimed to have researched it and attested to the fairness of the price, that the company had had only a partial interest, and that I had spent a total of $7.6 million on the apartment, counting renovations. These counts were wire fraud because of supposedly incomplete disclosure in the proxies (annual meeting voting forms sent out with the annual report), of the relevant years, based on the theory that I had benefited by more than $50,000 on each of the three events, and because I had supposedly wired a fraudulent amount when I sent my payment for the apartment to the company.
Count 13 was for obstruction of justice against me alone, for the removal of the thirteen boxes from my old office in Toronto on May 20, 2005. To convict, the jury had to conclude that I had “corruptly removed” documents for the purpose of impairing a U.S. proceeding, either the grand jury, the SEC, or the criminal case. I had Gordon Walker and Justice Campbell to thank for handing this fatuous charge to Sussman. Our witnesses had shown that I had no idea the SEC wanted anything more, after I had fully complied with five of its subpoenas and produced 124,000 pages of documents. It occurred a month before Brendan Sullivan told me they were a “thousand miles away” from laying a charge. It was clear from the evidence that I had had no knowledge of the contents of the boxes, nor anything to do with selecting their contents. There was no evidence that the boxes contained anything relevant to the case that the SEC did not already have, or that I had altered or even examined any of the boxes in the few days I had them. (I had not.) The judge emphasized that no Canadian proceeding was relevant to this case, but Sussman kept repeating that I had violated a Canadian court order. I did not and have never been accused of doing so. The government was caught red-handed, lying that I had furtively entered the building after hours in the dark and removed the boxes when the building was deserted. The colour film the government introduced (which Kelly had not shown to Justice Campbell in Toronto) showed that it was a bright afternoon, that I had arrived at 3:30 p.m., and that the parking lot was full of cars.
It was at least discernible in the evidence, though not as clearly as it should have been that I had cleared it with the acting president of the company, Don Vale, before I touched the boxes. Vale would happily have testified to this if Sussman had not threatened unspecified action against him if he even entered the United States. It could also have been found in the evidence that I could easily have destroyed or removed in a briefcase any documents in my office. There was absolutely no evidence to support this fantastic charge. Apart from being a deliberate and malicious fiction, it was, as Mark Steyn wrote, a “most shameless jurisdictional overreach.”
Count 14 charged me only, with violation of the Racketeer Influenced and Corrupt Organizations Act. This was a statute passed as part of legislation against organized crime in 1970, and it alleged that our company had been a criminal enterprise since 1998.
This charge had been thrown out in the civil case and was so outrageous I had trouble taking it seriously too. Julie Ruder had explained chummily to the court that racketeering “isn’t Al Capone and organized crime. It’s nothing like that, okay? … Racketeering is a group of people working towards a common purpose and they do that through a pattern of criminal activity and the group of people we’re talking about here is Mr. Black, Boultbee, Atkinson, Kipnis and Ravelston.” She did not explain why only one of the group, I, was charged with racketeering. Mark Steyn pointed out that Al Capone was a gangster convicted of tax evasion, and I was accused of being a gangster for licitly trying to reduce my taxes in a foreign country.
Counts 15 and 16 were tax fraud charges against all of us except Atkinson, for filing a false corporate income tax return in 1999, and against all four of us for doing so in 2000. The charges were based on the theory that we knew the non-compete payments were fraudulent. Even if the non-compete payments had been something else, they were still tax-deductible and we had not deprived the Internal Revenue Service of a cent. The idea that any of us had falsified a tax return was absurd.
The prosecutors had claimed as one of the instances of fraud that I had conspired to evade Canadian taxes with false non-compete payments. The Canada Revenue Agency has never claimed that, and the separate count making this charge was dropped early on, as even Sussman realized that it wasn’t his place to usurp the position of the Canadian tax collector. The earlier charge of money-laundering was dropped in mid-trial, as even Sussman acknowledged (surprisingly, as the same could be said equally of the rest of the courts).
None of the counts, against any of the defendants, had the slightest merit, and if the jury took the judge’s caution to have proof beyond “a reasonable doubt” seriously, justice would be done. The prosecution had only raised a reasonable doubt of the probity of our conduct in one or two counts, and the defence had laid the doubt to rest. It was clear to much of the press and most qualified legal observers that this should never have been a criminal case and that there was no believable evidence at all of misconduct by any of the defendants – no victims (apart from ourselves), no crime, except by Radler, nothing.
THE VAST PRESS CONTINGENT was like a pack of scavengers, hunting for scraps of news. Unfounded rumours swept like forest fires through their ragged ranks and were played in the British press as semi-authoritative hunches. On one sudden call to court, as we were changing units within our hotel and my socks had been packed, I went to court with my bare feet in my shoes, like many others there, men and women. This became a great news story. As I pushed through the cameramen toward the revolving door, a British photographer shouted an obscenity at me just as I entered the door. I gave him “the bird” in Trudeau manner, and this became a cause célèbre. One commentator proclaimed that as this was undoubtedly directed at the jury and the entire U.S. justice system, I was doomed. It was really one of the better-aimed barbs of the trial, possibly along with my references to the Toronto Star to Sussman and Cramer as Nazis.*
On that day, July 10, the jury reported that they were unable to reach a verdict on one or more counts. We urged, through Safer, as agreed defence spokesperson, that they report what they had, but the judge sent them back to try to resolve matters. On July 11, we remained downtown all day, expecting the call at any moment. Nothing happened, and then silence on July 12. Greenspan had arranged press interviews for me, and I had written post-trial pieces for the Globe and Mail and the National Post, anticipating the end of the long nightmare.
I wasn’t sleeping well. Barbara and I were both drained. I had a special telephone beside the bed. Only Genson’s office knew the number, and that was to be used only to call us to court. It rang at 10:00 a.m., July 13. Genson’s genial assistant, Nicki, said, “We have a verdict.” By a considerable feat of logistics, Barbara and Alana and I arrived at court at 10:25 a.m. A few minutes later the judge entered, then the jury. In that quaint way that still preserves the solemnity of the day, all rose for them. The jury had not dressed up for the occasion. The foreman, whom we identified from his questionnaire as a supervisor in the Chicago Department of Streets and Sanitation, as well as the owner of an insurance appraisal business with his wife and a real estate broker, seemed to us commercially knowledgeable, a member of the junior grade of the Daley political machine, and unlikely to be an unusually puritanical person. Rumours abounded that he was going to produce some guilty verdicts in exchange for Fitzgerald’s getting off the mayor’s back, and some preferments for himself. After the trial, someone known to one of our allies engaged the jury foreman as a valuator, took him out for a few drinks, and elicited his confirmation that the fix was in from City Hall. St. Eve determined that the source was not sufficiently believable to take it further. The source perhaps was not, but the allegation was.
The foreman gave the judge the verdict sheets. She started with me as principal defendant. “United States of America vs. Conrad Black. First count: Guilty.” I sighed and braced myself for a sand-bag job. It didn’t happen. I won nine of the counts and lost four. All the rubbish about racketeering, looting, personal extravagance at the expense of the shareholders, Breeden’s and Rosenberg’s “$500 million kleptocracy” – all this had gone over the side. I went down on two counts to do with the so-called non-transaction with American Publishing (counts 6 and 7), which Radler had said throughout and right through the trial was the redesignation of unallocated management fees.
Creasey had testified that he had not thought these were management fees, but acknowledged that he was “confused.” The jury had obviously not taken this on board. I lost on the one count of supplemental payments on Forum and Paxton (count 1), but not the initial non-competition payments, and, incredibly, I was convicted of obstruction of justice on the asinine box affair (count 13). On Forum and Paxton, the only evidence was Radler’s (false and uncorroborated) claim that I had asked if there were any non-compete payments to come from those deals, and that when he phoned back with a proposed division of the $600,000 he claimed was available and had been approved by the Audit Committee, I agreed with him. Even if his testimony had been truthful, it wasn’t incriminating.
Because we won all the counts related to real transactions, and all the prosecution’s drivel about a “scheme” had been rejected by the jury, it was clear that honest services was the problem, and in most U.S. circuits we would have been acquitted. The others were convicted on the same counts I was, except for obstruction.
The jury implicitly declared that Burt, Kravis, Thompson, Radler, and Healy had failed to tell the truth. The main non-competes were deemed to have been approved by the Audit Committee, and the Park Avenue apartment, Bora Bora, and birthday dinner as well as the IRS and SEC filings and racketeering counts were also thrown out.
Judge St. Eve had them well rehearsed. They all stood promptly and said, “Yes,” apparently understanding that that meant they were convinced beyond a reasonable doubt that we were all guilty of crimes and must go to prison. The jurors actually looked slightly impressive, standing up like synchronized pistons proclaiming their adherence to the verdicts.
There was no evidence of wrongdoing in respect of any of the counts that yielded convictions. It all came down to St. Eve’s instruction on honest services. The jurors appeared to have been distracted by the endless false allegations that I had violated a Canadian court order. (Later, one of the narcoleptics revealed in an interview that she had woken up for the tape’s screening. “You could see him doing wrong right there on the film,” she was quoted as saying. Another told the press that even though she thought I might not have intended to do wrong, I had.) It was clear that some jurors didn’t think there was proof beyond a reasonable doubt and that the jury had ignored the judge’s instruction to avoid trade-offs. One of the jurors who had ignored the judge’s instruction to avoid media coverage of the case, had come frothing into the jury room one day saying that the media thought they were incapable of reaching a decision, so they must reach one. The three women who had been defending us agreed to convict on four counts, and the militant majority agreed to acquit on the rest, and they went on their summer holidays. In this system, and given the ferocity and force of our tormentors, we could have done worse.
I felt that given the four-year assault on me, I had almost won the financial battle; Barbara was prosperous and unassailable, and the much-touted attack on her never occurred; and I had defeated the effort to send me to prison for life. Whatever happened on appeal, the absolute worst prediction was about five years served, and sentencing counsel assured me that we could do a lot better than that. Though I tended to discount anything optimistic from any lawyer, indeed almost anything of any tenor from counsel, there was a ring of plausibility to this.
Sussman again asked that my bail be revoked and that I be imprisoned at once. There were eight marshals at the door of the court, ready to take us all into custody, but the others were all released under existing arrangements, and Boultbee returned at once to Canada. Judge St. Eve declined to imprison me but said I must remain in the Chicago area, and scheduled a further hearing for July 19.
The initial reaction of Fitzgerald and his underlings was not one of great celebration. Needless to say, Greenspan proclaimed to me a great victory and said he would tell the press that it was a “devastating defeat for the government,” by which he meant a glorious victory for him. Since he knew nothing about the U.S. appeal process and his client was facing a prison sentence, I suggested that he not strain credulity to that extent. He and I agreed a statement expressing satisfaction that we had got rid of the allegations of racketeering, looting, and personal extravagance at the shareholders’ expense, and that the “$500 million kleptocracy” was down to $2.9 million of payments, which had, in fact, been approved and disclosed, and that we would appeal the convictions. Barbara, Alana, and I left through the back of the building, avoiding most of the press, and left Greenspan in his happy role of talking to the press, who were out in jubilating numbers.
My sober reaction was disappointment, but if the jury was prepared to convict even Kipnis, it implies that they were determined to give something to the government, and even better counsel might not have achieved complete victory for us. Safer had been brilliant, and Kipnis had not profited from the contested payments and was defended by Radler, but he had lost as badly as Boultbee and Atkinson, while I had won three-quarters of the charges the government started with, and 90 per cent in terms of potential financial downside.
Once again, Providence had rescued me from the abyss, but left me still in the coils of severe adversity. My enemies would not impoverish my family or imprison me for life, and we still had a chance at acquittal, or at least a reduction to a Martha Stewart-gotcha offence. I thought I had defeated the attempt to brand me as an outright crook who had robbed the company of huge sums of money. I wasn’t especially afraid of prison, but there was no gainsaying that time out of my life spent there would be horribly inconvenient. After four years, it was possible to wonder when the war would end. Even if I stayed out on bail, it was no better than a fifty-fifty chance to win the appeal on all counts, and that might defer matters for up to another eighteen months.
I was not giving up on the appeal to the trial judge, much less the appeal judges, and sentencing counsel was hopeful we could get the sentence down to the point where the judge had to grant an appeal bond. I took Alex Bourelly’s advice and met with lawyers from Mayer Brown et al., a famous appellate firm. They looked like the quality of counsel I could not afford at the start of the trial, after Sussman seized the proceeds of the New York sale, which he would now have to relinquish.
I also spoke to Alan Dershowitz, and met with him a few days later when he came to Chicago. I retained Marc Martin, who has a good record on appeal, and provided continuity, a Chicago presence, and procedural expertise. I was pedalling away from the Eddies. Mark Steyn produced a fierce diatribe against them in Maclean’s, highlighting their lifting of $2.2 million from me just as the trial was ending, to pad their retainers. It was the end of Greenspan’s mystique, other than in the eyes of his worshipful claque. I took no pleasure in this, but his evident depression at the first bad press of his life amplified my awareness of his vulnerable ego.
An avalanche of messages came in, several hundred, all but two of them generously supportive. I laboured through the days following the verdict to reply to them all and to take the many telephone calls. The press in Canada was mixed; in the United States it was factual, except for a reversion to extreme antagonism in the Sun-Times and an uncharacteristically inane editorial in the Wall Street Journal (now a Murdoch newspaper). The British media were as abominable as could be imagined, though they continued to run favourable reviews of my Nixon book. It was now time for silent manoeuvring and skirmishing. The argument for injustice could be made by discerning observers. I declined all contact with the press, other than on the subject of my Nixon book.
On July 19, I went to see the probation officer, Sheila Lally, a very pleasant and thoughtful woman, and had a good talk with her. She allegedly carried some weight with the judge. Barbara and Alana also spoke to her, and Jeffrey Steinback (sentencing counsel) told me, which I do not doubt, that they were both very persuasive.
That afternoon, Greenspan, with the aid of David Roebuck, tried to explain to the judge the civil law of Canada. For either Barbara or me to provide more bail might be deemed a breach of the Confidential Settlement Agreement (which Greenspan kept calling the “Confidential Security Agreement” until the judge corrected him), which emerged after the Mareva fiasco in September 2006. Roebuck, never an expeditious speaker, taxed the patience and the comprehension of the court with a very circumlocutory explanation, and he and Greenspan, bowing to the judge in the Canadian manner, seemed at times almost like a slapstick routine. She again rejected Sussman’s request for revocation of bail, and told me I could go to Palm Beach, but not to Canada. She professed to be concerned that if I went to Canada, I would fight extradition. “He’s not a flight risk,” she was fond of saying, “Mr. Black is a fight risk.” This appeared to be based on a case she had had in her time as a prosecutor when some wily Canadian had left her jurisdiction for Canada and had been very difficult to extradite for one of her trials. I did not believe she thought that I would fight extradition, as it would be insane. They had not rebutted at all Sussman’s repeated allegations of my untrustworthiness. Greenspan pronounced it “a good day,” meaning, I assumed that since he had done much of the talking, it must be a good day. It wasn’t. A new hearing was scheduled for August 1.
It was starting to seem like the summer of 2006, where the judge just kept punting forward Sussman’s demands for revocation of bond and the forced sale of the Palm Beach house. The summer was slipping by. Almost everyone we knew had left Chicago, and we remained in our very comfortable hotel, but after more than four months, it was time to go.
BACK TO COURT ON AUGUST 1, the crush of reporters, the judge, Greenspan, this time with George Glezos* and Stephen Green in tow from Toronto, civil and immigration counsel. (Every step involved more lawyers.) Voorheis on this day finally packed the Sun-Times board with Hollinger Inc. nominees, which he should have done as soon as he displaced Walker and Carroll. He put Hollinger Inc. into creditor protection, which made it too late to do anything with Hollinger International. And he sent to Chicago a Rent-an-Affiant, claiming he had reason to believe that I had stashed 40 million Euros in Gibraltar. George Jonas knew and had employed Voorheis’s affiant, an erratic and absurd Israeli named Aviv who had been branded “a liar” by a serious U.S. court and had offered the theory that a rogue unit of the CIA had blown up the Pan American 747 over Lockerbie, Scotland, in 1989, killing hundreds of Americans. (He had hatched this imaginative theory on behalf of the insurers of the aircraft. It didn’t fly well either.) His affidavit was a complete invention, and Greenspan opened with a very thorough demolition of Aviv. So much so that Sussman didn’t touch it; this one was too rank even for him, and the judge and most of the press ignored it. This was the customary response to unambiguous successes of ours: silence, as if it had not really happened.
Eddie Greenspan was better organized than on July 19 and answered the judge’s questions fairly crisply. They had chased up the Mareva monitor on holiday in Israel, and Greenspan could confirm that an attempted variance of the settlement could be construed as a breach, so neither Barbara nor I could add to the bail if we wanted to, because of the settlement. (No one had imagined that more bond than the $38 million already posted would be requested. Sussman’s position was that civil claimants were going to take all my money anyway, so there was no disincentive to fleeing. His impudence was inexhaustible.)
The judge stuck to her nonsensical point that she wanted more bail. Greenspan gave an impassioned and rather eloquent speech about my right and desire to go home. Genson stirred himself and also made an impassioned statement that I was indeed a fighter, but that I would fight through the normal channels. They both did their best. Sussman didn’t have to say anything. The judge was not buying it.
Even though it came into evidence that the Canadians would admit me without a passport, she clung to her fear that I would return to Canada and then fight extradition. I had thought her quite a fair trial judge, but this was rank discrimination. How she imagined that borrowing more bail from rich friends, since I couldn’t provide it myself under the Mareva agreement, would reduce the chances of my jumping bail, I didn’t understand either. She seemed to have made the Manichaean leap from comparative fairness to part of the prosecution because of the findings, as if it were a rigorously condign process, the operation of which required the defendant to accept entirely a guilty verdict, no matter how passionately he had fought it and was still pleading his innocence, and no matter that he had debunked ninety per cent of the case. There was also a chance that she was just making an example, after months of press attention, of the consequences to my conspicuous lack of regard for the prosecution.
I REFUSED TO ASK ANYONE for money and I refused to consider more bail. I would go to Palm Beach. This I did on August 8, as Barbara flew to Toronto. It was not the end we had wished for our sojourn in Chicago. Barbara was welcomed back by Canada Immigration, by a woman who claimed to have been an admirer of ours for twenty-five years, and said that the U.S. treatment of me had been an outrage. Barbara wept at being kindly treated by a government official. She tried to pay duty at Canada Customs, but the inspector would not hear of it and said that the U.S. treatment of me had been disgraceful and waved her through.
HOT AND HUMID THOUGH Florida was, I was glad to return to our home in Palm Beach. It had been much publicized, but it was still ours, and had gone straight up in value throughout the persecution of us. It was time to regroup, yet again, in this long and horrible war.
Palm Beach proved a perfect place to rest. The long trial had been so enervating, I sometimes slept for more than ten hours a day. I worked on this narrative and contributed to motions and filings in the afternoon and evenings, and slept most of the morning. The evenings and nights, from my eastern terrace, overlooking the ocean, were very refreshing, with a warm, slightly salted breeze coming in off the water.
Alana came for a time. There was no shortage of well-wishers, by telephone and in person. Friends came from as far away as Britain and Italy and stayed with us. Barbara came from Canada after about two weeks and I had a good time with my neighbours, Ann Coulter and Rush Limbaugh, flamboyant champions of the political right. I had an amusing little spoof for Canadian television with humorist Rick Mercer, about waxing maple leaves when unable to enjoy the autumn within Canada. Seth Lipsky organized an uproarious dinner at the Breakers Hotel with some journalistic friends, including Mark Steyn, Ken Whyte, Taki, Bob Tyrrell (the American Spectator), and Roger Kimball (the New Criterion).
The eminent novelist and good friend Margaret Atwood assisted in setting up a Long Pen signing of my Nixon book from my southern home. Sitting in my library in Palm Beach in front of a camera, I was able to write a note on screen and have it exactly reproduced in the customer’s book in one of Heather Reisman’s Indigo bookstores in Toronto and later at Waterstone’s in London. My friend the historian Andrew Roberts, who with his wife had stayed with us in Palm Beach a few weeks before, moderated a press session at Waterstone’s. Here and in subsequent radio and television interviews with the BBC, I chided the British media for “bourgeois priggishness” and explained what rubbish the few remaining counts were. I reminded them of their usual relentless criticism of the U.S. justice system. When asked my opinion of Judge St. Eve, I replied that judges do the judging, not the defendants. All these events had the effect of psychologically loosening the impact of St. Eve’s unnecessarily restrictive bail terms.
The countless irritations incited by our discomfort did not abate. My dear friends at the Canadian Imperial Bank of Commerce noticed in the newspapers that there was some restraint on my spending and abruptly determined to pass none of my cheques, or Barbara’s. This was a breach of their banking covenant and of the Bank Act. The information on which they acted had been in the public domain for more than a year, since the Mareva nonsense began. We demanded that Hollinger Inc. give CIBC the necessary assurances. Instead, it tried to renegotiate the Confidential Settlement Agreement. Campbell was now so overwhelmed by the controversies he had helped to precipitate and infect that he refused to judge anything, and his answer was to tell the parties to try to settle any issue. He had gone from a gavel-happy judge of poor judgment to a timorous judge reticent to judge. It was a marginal improvement. Finally, as Hollinger Inc. was besieged for demands that it be plunged from creditor protection into bankruptcy, and there was pressure on it to reduce legal bills, a passable settlement was agreed.
The nonsense with the Warhol silkscreen portraits of me arose again, and I secured funds for a bond, enabling me to buy the Warhol in my house and bid on the other two, of which the receiver, now desperate to find more money in Ravelston to appropriate, had the most inflated notions of value. In fact, I owned them, but the paperwork was almost non-existent and ambiguous, and I remained unwilling to entrust this issue to the Toronto courts. It was very annoying, but I was accustomed to this sort of harassment. I declined to chase the first one in New York, but determined to press for the second one, which Barbara bought at Christie’s in London in February, and to return to a quartet by having the silkscreens copied – not a great challenge.
For no given reason the insurer of my homes and their contents, abruptly defected. I was a toxic waste area. My legal condition had no bearing on such matters and it was high-quality business. Working with my agent (the daughter, as it turned out, of a man I had gone to high school with), I found other insurers. Having registered my grievance with Hal Jackman’s public comments about Barbara and me in 2003, I would be remiss if I did not emphasize the very benign role his son and their corporate group played in both the Warhol and insurance questions.
I learned from the press that the U.K. Conservative Party no longer considered me a Conservative peer. Departing that oft-defeated party was no great sacrifice, but learning of it in this way, and not being given the opportunity to await appeal, explain my side of things, or to withdraw voluntarily, was gratuitously insulting. I received a somewhat condescending letter from the chief whip eventually, to which I replied with approximately equal condescension.
Even Cardinal Leger’s charity sent me a letter purporting to require my retirement as a director, which was in fact an honorary position. I was threatened with being expelled by three-quarters of the members at the annual meeting in May 2008. I replied, in acidulous terms, with a handwritten riposte on their faxed letter to me that, given my past services (raising and contributing large sums of money) and the excellent prospects of my appeal, I would await the annual meeting. I eventually agreed, when they made a more diplomatic approach, not to stand for re-election. I had not attended one of their meetings in thirty years.
I responded to a request for funds from a friend for a conference at Laval University, and was advised that the university could not accept a contribution from our foundation. I was invited to send a non-charitable contribution but naturally declined. Toronto’s venerable York Club, where I used to debate with Walter Gordon over his sponge cake and where my picture is on the wall for having given their annual Hungerford Address, sent me an insolent letter stating that I was suspended awaiting appeal, by unanimous vote of the directors. I gave the letter to Eddie Greenspan, whom John Turner and John Fraser and I had sponsored as a member of the York Club some years before. It was not long before he had the club scrambling and retrenching and reconsidering. Whatever his limitations in a U.S. criminal court, he still was well able to terrorize a club secretary and a ragtag of Toronto club-lizards. The tax-collecting authorities of Canada and the United States started up again, claiming to find unpaid taxes and wishing endlessly to converse with my counsel. Plodding, repetitive, and greedy, these people didn’t change much from one decade and country to another. After all I had been through, I wasn’t much concerned, and had little doubt we would see them off, once again. The IRS also intensified a spurious and systematic harassment of Barbara. I suspected that few of the people scoring off me in the press over these points had had to put up with more than the odd angry word or memo, and lacked the imagination to guess what Barbara and I were enduring.
THE WEEKS DRIFTED BY IN PALM BEACH as agreeably as they could. We had offered a solution to the Hollinger Inc. bondholders, who were now under water by 50 per cent on the cost of their investment. The fools did not wish to deal with us. Hollinger Inc. was, in fact, bankrupt, and Voorheis, now exposed, was reduced to claiming that the future of the company reposed in “litigation assets.” These were unfounded lawsuits against ex-directors, banks, the former management, launched by people who had milked and destroyed the company at great profit to themselves. This was the effect of the Campbell-Farley-OSC axis: the elimination of $250 million of the shareholders’ money, about half of it mine.
The bondholders shortly had the pleasure of seeing their position under water by 85 per cent, then 95 per cent, then 100 per cent, as the Sun-Times stock that secured it descended beneath $1. It had been at $22 after Strine’s infamous misjudgment in February 2004. Tweedy Browne bailed out, having lost their investors about $70 million, and helped indispensably (as Kissinger would say) to destroy the companies and the interests of all. This was the supreme coruscation in these matters of the corporate governance movement.
The surreal injustice and absurdity of it all continued to escalate. A 10 per cent shareholder of Sun-Times finally revolted and demanded the removal of Seitz as chairman and the complete departure of Paris, so horrible had his management performance been. The latest wrinkle was that Paris had invested $59 million in Canadian real estate–backed investments that had not met their redemption obligations. A loss of $42 million was booked. Paris had been fleeced by Canadian real estate financiers and piled into foreign sub-prime mortgages, just before they evaporated. This was an odd inspiration for a newspaper company, but a typical initiative of the Paris-Seitz-Breeden executive suite, effortlessly losing almost ten times what we had been falsely convicted of receiving improperly. There was some justice in this, but not for the suffering shareholders.
The myth continued to circulate that I could have got rid of the whole problem by paying a few million dollars at the end of 2003 and only my stubborn pride had prevented a settlement early on. This canard was propagated by Henry Kissinger and his New York social entourage of bearers, beaters, and trumpeters, to reinforce Henry’s inevitable self-image as a peacemaker frustrated by my inflexibility. I had done my best to settle with the institutional shareholders. Breeden was a mortal assailant even before he physically appeared. It was obvious from Breeden’s violation of the Restructuring Agreement and his refusal to deal seriously in January 2004 that this was always a vendetta, and the easy, early avoidance theory was one of the many self-serving myths confected for this case.
Henry’s approach reminded me of his exhortations to Nixon in 1969 to 1971 to be fierce with North Vietnam and North Korea, while assuring his liberal journalistic and social friends that he, Henry, was all that was preventing the madman president from blowing up the world. To adapt Churchill, it is in small as in great matters that statesmen fail to distinguish themselves.
As the fourth anniversary of the start of the nightmare approached, my $250 million of value in Ravelston had evaporated. The companies had been almost completely destroyed. America’s greatest, most prestigious, and most reliable source of general support in the international media, The Telegraph plc, was now in the hands of owners who were far from pro-American (the Barclays were influenced in part by Strine’s gross misjudgment). The corporate governance zealots had been exposed as the cynical or naïve but money-grubbing frauds I had always claimed they were. This was the fruit of the U.S. government’s four-year assault on honest men, at the behest of Breeden. Still, three-quarters of the allegations against the management had been rejected, and we retained a substantial possibility of complete official vindication. It was a war of attrition, and as Mort Zuckerman had said to me when early on we met on Madison Avenue, “It’s the last man standing.” Shortly after the trial, Candice Bergen, a very intelligent and generous-minded person, in addition to her better known talents and attractions, told Barbara what I took to be the view of her husband, the very able Marshal Rose, and the sophisticated circle of his business friends, who included my former director, Leslie Wexner: “What a time you’re having! Conrad will probably win, but at what cost!” Indeed.
THE JUDGE REJECTED THE defendants’ motions to overturn the convictions or declare mistrials, other than an acquittal of Kipnis on one count. Her reasoning, as Ruder was fond of saying, was “ridikalus” and disappointing: the fact that I hired a law firm that had a sizeable criminal practice demonstrated that I knew of the grand jury investigation of me, and confirmed the obstruction charge in the judge’s mind. How could an apparently serious judge write such bunk? We awaited her judgment on forfeiture (where Sussman had reduced his claim from $80 million to a still phantasmic $18 million); the sentences; and the continuation of bail, before taking the survivors among the government’s farrago of false charges to the Circuit Court of Appeal.
Sheila Lally submitted a favourable probation report, and I rounded up about a hundred letters of support from people in every conceivable walk of life. Many were very generous and moving. Barbara’s, Alana’s, Jonathan’s, Brian Stewart’s were among those that were particularly exquisite.
It was a little like reading my own obituary and being pleasantly surprised. Many former employees, people I had helped at various stages of their careers, as well as prominent people in many fields and from many countries, wrote embarrassingly generous requests to the judge for clemency. Carolyn Gurland performed prodigies in writing up materials for the judge and probation office, and by her fine sense of humour was a delight to deal with as well. I received up to fifty letters or emails of support a day as the sentencing date, December 10, approached. These ghastly afflictions are not without their rewards.
WE ATTENDED UPON THE judge yet again. The huge press contingent was relatively respectful: little jostling and no audible coarseness or abrasive questions on the way in or out (unlike the occasion early in the trial when Barbara had almost been knocked cold by a boom microphone). I sat between Jeffrey and Carolyn, majestic and well exercised as she entered the ninth month of her pregnancy. The Eddies, looking a bit out of place, were opposite; there was no shortage of people in the room who thought that if Greenspan and Genson had been up to the task, there would have been no sentencing. I shook hands with each of them on the way in and out, but there was no conversation between us.
Gene Fox from Cardinal Capital, a small institutional investor and former obsequious supporter of mine, rambled on in a hastily misconceived victim statement blaming me for the collapse of the company starting long after I had left. Sussman asked twenty years – a likely life sentence, as might be asked for murderers and rapists – and $27 million of fines and forfeitures.
He grumbled about lack of “remorse,” as if the limited perspective and incoherent judgment of the jurors on a quarter of the counts must cause me at once to do a U-turn, acknowledge my guilt, and renounce everything I had said on the subject for the last four years. I was delighted that he was particularly miffed that I had publicly called the prosecutors “Nazis” and complained vociferously about my recent BBC interviews. Most of the media and even some of my counsel had expressed confidence (though not to me personally) that my remarks would cost me years in prison. I was to surface only occasionally, like the orange-suited defendants shunted into court in handcuffs to be momentarily represented by blasé legal-aid public defendants.
Jeffrey Steinback, a chronic optimist, thought he could get the announced sentence under three years; I thought a bit more. Barbara and Alana thought a little more negatively. Jeffrey rebutted the complaints about the interviews and produced a rather awful mangle of Portia’s speech on mercy from The Merchant of Venice. The judge invited me to comment.
I had planned to speak at length about the nonsense of the convictions and the whole lethal assault of the U.S. government and its accomplices, but Jeffrey and Carolyn persuaded me that this wasn’t the place for that, and that Judge St. Eve could raise the sentence if I did so. They understood there would be no statement of remorse, even if making such a statement was the only way to spare me the fate Sussman had been seeking. I had no notes and spoke from memory in an even voice. After all I had been through, I did not find addressing the court and the media in the slightest unnerving, and spoke for less than five minutes.
I referred to arguments and filings made on my behalf, especially Marc Martin’s Basta filing from July 2006, which detailed Sussman’s false accusations to the court, and Carolyn Gurland’s letter to the judge of two days before, debunking the madly delusional Sun-Times victim statement. The fact that we were appealing the remaining counts “speaks for itself.” I later said that I would have “no difficulty at all rebutting the most recent statements of the prosecutor, and of Mr. Fox.” I offered to explain my public comments on the prosecutors, but St. Eve shook her locks unthreateningly to confirm that that was not necessary. Thus, as she doubtless foresaw, she spared the court and media what would have been a calmly delivered but pyrotechnic summary of the prosecution’s more outlandish infelicities.
“We have the verdicts we have and we can’t retry the case here … I do wish to express my very profound regret and deep sadness” (the press strained audibly to hear) “at the severe hardship inflicted upon all of the shareholders, including a great many employees, by the evaporation of $1.85 billion of shareholder value under my successors.” (And the press sank back, denied the Sussmaniacal “remorse.”) This not only laid the lash where it belonged, but emphasized that I had no apology to make for my own conduct. I denied that I had ever uttered a disrespectful word about the judge, court, jury, or process (a slight liberty with the facts) but declined to withdraw or modify my reflections on the prosecutors. I made the point that the stock price had remained between $18 and $22 for a year after I retired, and was then under $1, largely because my successors ignored my advice as a continuing director, to avoid many of the catastrophic errors they plunged into like beasts into well-set traps.
I concluded: “It only remains for me to thank Your Honor for the unfailing courtesy and efficiency with which you have conducted this trial. Prior to arriving under your jurisdiction, I was the subject of an almost universal presumption of guilt, including the theory that I violated a Canadian court order, which I did not and have never been accused of doing. This presumption of guilt applied to all counts and prevailed in almost every court, both of law, and of public opinion.” I thanked her and she thanked me.
She rather mechanically read assertions that I had been convicted of serious offences, and implicitly acknowledged that I had had an impressive career (and added with a smile that I would not need vocational training). I was not particularly tense, as the probation report was favourable and the judge was very deferential to Sheila Lally in court, and I was satisfied we had a strong appeal, and that I was putting the worries generated by the Eddies behind me. I did not see this as the end of the line, whatever her sentence.
She expressed no objection at all to my comments on the prosecution. Her disdain for Sussman was fairly well known, as was the fact that Sussman was desperately and unsuccessfully seeking a legal position in the private sector. (He did eventually find one. So did Cramer, two years later.) That very day a Supreme Court judgment had confirmed her ability to vary sentencing guidelines; but while this ruling was referred to in court, she chose not to follow Sheila Lally’s advice to go below the guidelines and took the low end of them, clearly thinking she was being merciful. She acknowledged that I was appealing the sentence, imposed a sentence of seventy-eight months, recommended minimum security, and again ignored Sussman’s request for immediate imprisonment. She gave the maximum time to self-surrender (twelve weeks) and imposed a fine of just $125,000. Even more important, the judge threw out the request for forfeiture based on the claim that the government had proved that I was guilty of the acquitted acts under a civil standard of proof. Judge St. Eve’s assertion that they had not even met a civil standard of proof was the victorious end of the financial struggle and effectively sank most of the civil suits against me.
We felt that the letters, Carolyn’s written arguments, and Sheila’s recommendations made a useful difference and Mayer Brown had set no store by any of it. Andy Schapiro of that firm had said that we should just send a pro forma response to the the Probation Office, and that the officer would “not have the intelligence to understand anything we wrote anyway, and no one would pay any attention to it.” My evaluation of Ms. Lally was that she was a serious and credible person who would be listened to by the judge and was favourably disposed and should not be treated cavalierly.
The long-standing pattern was retained: taking custodial and financial matters together, we had won about four-fifths of what was in dispute with the prosecutors. The six years and six months would really, in practice, and after accessing certain programs, be about four years, in fairly manageable conditions. This was a long way from the “conspiracy so immense”* that gave rise to the demands for life imprisonment with hardened criminals and sodomites and complete impoverishment. And the battle continued; we would seek continuation of bail, and I had already engaged appellate counsel in whom I tentatively had confidence, despite their advice virtually to ignore the probation officers.
Two days later, a month-old Greenspan interview with the National Post was disembargoed, as the revisionist campaign heated up; he attacked Genson as an incompetent, and blamed Barbara for “insinuating” herself into the case. He had no criticism of Alana, Jonathan, or me. I declined to reply. It was objectively sad and that chapter was over.
THE NEXT TWELVE WEEKS IN Palm Beach became steadily more Damoclean, as the self-surrender date approached. Judge St. Eve, true to her new persona as a virtual bailiff cleaving like a limpet to the fiction that the process had produced condign verdicts, declined bond pending appeal. We applied to the Circuit Court of Appeals. Bill Buckley and I exchanged comments in published columns in the New York Sun and National Post about my case. (See appendices.) He came to Fort Lauderdale for a month, and we had dinner twice in Palm Beach. He was approaching death, was almost looking forward to it. Pat, his devoted and riotously witty Canadian wife of more than fifty years, had died in 2007. I was, he thought, reasonably prepared for what I was fairly convinced was coming next (though not quite as sanguine about it as he was about what he was facing). The coils were tightening and the fanatical determination of the U.S. justice system, as manipulated by Breeden, to send me to prison, was coming to pass. There would be nothing for it but to prove that theirs was a hollow and fleeting victory; that I was unintimidated, unjustly confined, and undaunted by the vast machinery of incarceration, humiliation, and stigmatization that had assaulted me. And I would continue to pursue victory: appeals, and if necessary, evocation of the whole sordid proceeding to the judgment of an unbiased foreign jurisdiction.*
Barbara and I went to Fort Lauderdale to have lunch with Bill Buckley the day before he returned north. It was an exquisite occasion, but we all knew it was goodbye. He was a great man and a dear friend, and he died about three weeks later, February 27, and I was just finishing a remembrance of him for the National Post when Andy Frey of Mayer Brown telephoned to confirm that the Circuit Court had refused bail. I was to report to prison four days later.
* I early developed the habit of replying only to questions put to me in French; initially to assist the French over the British (whose journalists never spoke a word of French despite their communautaire enthusiasm), and to favour the French Canadians, who would feel themselves in a very foreign city in Chicago, where almost every Western language except French is widely spoken. When asked why I did this, I explained to the French that I was a zealous European and to the French Canadians that I was demonstrating my love of minorities, “shareholding and otherwise.”
* George Glezos, a good lawyer and a delightful man, died of a coronary a few weeks later. He was fifty-three and apparently very fit. He had a bad lottery ticket and is much missed.
* Senator Joseph R. McCarthy’s attack on General George C. Marshall, U.S. Senate, June 14, 1951.
* This was my plan, referred to earlier, of taking some attempt in Canada or Britain to remove me from a club or some other association, as the opportunity to go to court to apply the test of whether any guilty verdicts would have been returned on the same evidence in that other jurisdiction. Of course, none would have been in Canada or Britain, where prosecutors would not be allowed to offer the inducements Fitzgerald and his entourage had to some of the witnesses.