Different case, but were they thinking ‘That’s me if it all goes wrong’?
AN UNSETTLING ORANGE JUMPSUIT
Different case, but were they thinking ‘That’s me if it all goes wrong’?
It’s a small courtroom and it’s full of lawyers. Three of the defendants are lawyers, and obviously their lawyers are lawyers, and, even with lawyers’ tables clogging every inch of the well of the court like a restaurant that’s decided
to hell with the fire code, the lawyers are spilling out all over what’s left. They’re not yet hanging from the light fixtures, briefcases dangling, but they’re on the media benches and the public benches. I sit behind the government lawyers who aren’t big enough to rate the A-list government-lawyer table, but last week I briefly sat behind the numero uno government lawyer, Patrick Fitzgerald, who swung by just in time to catch his boys’ witness giving an endearingly disastrous performance and decided after 20 minutes he’d had enough.
MACLEAN’S APR. 23 ’07
There are lawyers from many lands. There are lawyers live and pre-recorded. We spent most of this week watching video depositions of members of Flollinger’s Toronto law firm who’d declined to appear in person. The media ranks themselves contain lawyers slumming as TV “legal analysts,” and some days a government lawyer from another case the U.S. attorneys are working on comes and sits next to me just for a break. (“What is this case about?” he asked me after listening to his colleagues working the room for half an hour.) For the first week, a tabloid hackette from London under orders to get the inside scoop on Conrad Black’s daughter kept nudging me toward some dark-suited lad alongside Alana and demanding to know: “Is that her boyfriend?” “No,” I said. “That’s a lawyer.” I’ve met young Miss Black’s beau, so I had an advantage over Fleet Street’s finest. The next morning, another bespoke type would be on her bench. “Is that her boyfriend?”
“No. That’s another lawyer.”
But on Monday morning, amid all the charcoal and navy tailoring, there was a startling breach in the colour scheme at the bar of the court: orange. It was being worn by a young black man in prison garb. His lawyer had brought some or other motion before the judge and she was hearing it in the 10 minutes before the Black trial resumed. The defendants regarded the prisoner with studied insouciance, but some of them must surely have been thinking: that’s me if it all goes
thinking: me goes wrong. Fitted out for the orange jumpsuit. In Canada, where you can gun down the PTA meeting, get a life sentence and be out in 18 months, we sometimes find it hard to comprehend the American system. But even the most minor player with the fewest charges
against him, Peter Atkinson, is looking at 36 years in the slammer. As it happens, during my own days as a Hollinger columnist, it was Peter who drew up my contract, and I can’t quite believe that a chap who in my limited dealings with him always struck me as a by-the-book Toronto lawyer could be spending a third of a century south of the border in a federal penitentiary just for a couple of ill-advised “non-compete” payments. And Atkinson’s the guy who co-operated with the post-Black investigation. He was described to me circa 2004 as “a broken man,” so he played nice, returned the money, and was kept on by the usurper regime at Hollinger as a “consultant.” And a fat lot of good it did him—unless you think being on the hook
for a mere 36 years in contrast to the 101 Conrad’s facing is such a swell deal when you’re 58 years old.
I was on a Chicago radio show the other morning and, as I was leaving, one of the hosts asked how I thought the trial would end. “Acquittal,” I declared confidently.
“Oh, you guys,” she said, indicating her cohost. “That’s what he said about Scooter Libby”—Patrick Fitzgerald’s last dubious frontpage prosecution, and one that concluded very successfully from his point of view.
Okay, when I say “acquittal,” all I mean is I think that’s how this cockamamie case ought to end if there’s any—what’s the word?—justice. The U.S. justice system is not especially attractive at close quarters and its revolting appetite for plea bargains and immunity agreements all but ensures a capriciousness to its judgments. As professor John Langbein of Yale Law School has written:
“Our formal law of trial envisages a division of responsibility. We expect the prosecutor to make the charging decision, the judge and especially the jury to adjudicate, and the judge to set the sentence. Plea bargaining merges these accusatory, determinative, and sanctional phases of procedure in the hands of the prosecutor.”
Just so. It’s not simply about the relatively major players who are offered immunity to testify for the government but about the flip side: those who can offer exculpatory evidence for the defendants’ case and so are leaned on by prosecutors in order to stay away. There was a lot of this in the Enron case, a sad example of how justice is no longer blind but trains her beams on those who decline to play their parts in a predetermined federal narrative: the government took a sledgehammer to a peripheral figure called Jamie Olis and got him banged up for 24 years (reduced, after arduous appeal, to six) for no reason other than (as the Wall Street Journal put it) their fury at his “insisting on his right to a jury trial.” The result is a Super Bowl game in which the coach of one team has huge powers over who gets to play for
the other guys. It seems clear that Mark Kipnis, the token American on trial in an otherwise Canuck-packed dock, is there as punishment for declining to come over to the U.S. attorneys’ side. On the other hand, there is a man called Todd Vogt, who was known around Hollinger as “the son David Radler never had” and whose name crops up time and again in these transactions. He’s somewhere up in B.C. declining to appear in Chicago, and that suits the government just fine.
But even by the debased standards of a system run by plea-wielding prosecutors this trial is bizarre: Conrad Black is charged under the RICO statute. That’s the Racketeer Influenced and Corrupt Organizations Act, which is part of the Organized Crime Control Act of 1970. According to its coy devisers, the acronym RICO may or may not be an allusion to Edward G. Robinson’s character in the protean Warner Bros, rat-a-tat-tat gangster flick Little Caesar. But you get the picture: it was created for mobsters, gangland kingpins, hit men who have critical witnesses whacked, etc. It seems unlikely Congress intended it to be applied to weighing a form of executive compensation that’s tax-free in Canada. Here’s the evolution of Chicago justice in a nutshell: Al Capone was a mobster they nailed as a tax evader; Lord Black (if one accepts the government’s case) is a tax evader they’re nailing as a mobster. To charge Black as a racketeer reflects badly not on him but on American justice.
What else is there? Mail fraud, wire fraud, the usual phony-baloney by which doing something perfectly routine in the course of a crime is itself transformed into a crime—in this case, using the post office or the bank. You might as well make using the toilet in the course of a crime a self-contained criminal act: can fraud. And then there’s “obstruction of justice”: according to the indictment, “in December 2004, a Canadian court ordered that no documents could be removed without court permission from the 10 Toronto St. offices,” yet Black went ahead and removed several boxes from the building, as caught on closed-circuit security camera. Why is the U.S. Department ofjustice bringing a charge deriving entirely from a Canadian court order against a Canadian-cum-British-peer in relation to a Canadian business premises at 10 Toronto St., Toronto, Ont.? Why isn’t that dismissed as a laughable jurisdictional overreach?
Well, because “obstruction” and “racketeering” and all the rest enables them to ramp up the sentence by another decade or three, and thus put the squeeze on Black to cop a plea and settle for an Atkinsonesque half-acentury. At least two former prime ministers are swanning around the cocktail circuit telling folks poor old Conrad rejected a plea bargain that would have required him to serve seven years. But that’s missing the point: Black is fighting for his reputation, and reducing the sentence wouldn’t reduce the loss that pains him most.
For the first few weeks, I kept assuming the government must have something more. Yet time goes by and the government’s still pressing a very narrow case overwhelmingly derived from the impropriety—or “criminality”—of splitting non-compete payments, 75 per cent to Hollinger International in Chicago, 25 per cent to Hollinger Inc. in Toronto. This week, one defence attorney quizzed Fred Creasey, Hollinger comptroller turned stumblebum prosecution witness, about the gap, and I thought for a moment we had a Rose Mary Woods-sized missing chunk in the records. But the lawyer meant GAAP—as in Generally Accepted Accounting Principles. It’s not glamorous but that’s in fact what’s at issue. The government maintains that the stewardship of a hydra-headed corporate enterprise is full of hard, cold, clear blackand-white rules: you do this, you’re in the clear; you do that, it’s a crime, and mail fraud, and racketeering. But, as dozens of accountancy readers email me each day, accounting is principle-based: it’s not about whether you’re doing 45 in a 30-mile zone but about negotiating the road in accordance with “generally accepted” codes. To judge from the paperwork of the CFOs and CPAs and outside auditors and related-party-transaction lawyers, the division of the non-competes seems to have complied with Generally Accepted Accounting Principles. In rejecting “generally accepted” principles and demanding a system of yes/no rules, the prosecutors are doing American capitalism no favours and are making the criminalization of business all but inevitable. This would not have been a criminal trial in most parts of the English-speaking world; if this has to be decided in court, a civil case does a better job of weighing the different factors and allocating the division of responsibility between the many people whose fingerprints are all over the non-competes.
But my pal on the radio is right: once it goes to the jury anything could happen. I’m told by experts that if it’s all just shades of murky grey—dark grey, according to the prosecutors, but pulled back to light grey on cross-examination—the jurors get bored at the impenetrable technicalities and vote to acquit. So the fastest route to conviction is to connect up the murky inferences with
a) There’s something funny going on in the bookkeeping that we can’t quite explain;
b) But he’s throwing a lavish party for his wife;
c) So that explains it.
In a quiet moment the other day, Conrad Black and I were talking about his forthcoming Nixon book and I wondered whether he was going to write up all the presidents. And, after I’d mentioned “Vermont’s two presidents,” he said: “Vermont claims two presidents? No, don’t tell me...” He got Calvin Coolidge quick enough and after a clue or two triumphantly produced the second one: Chester Arthur. Conrad on Chester would be worth reading, but I think his next book should be on what’s killing the U.S. justice system and how it should be fixed. Whether it’s a better sell written by a felon or a vindicated man, I leave to his agent. M
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