In the wreckage, there may not be any case for the defence to answer
THE BIG GUNS FALL SILENT IN CHICAGO
In the wreckage, there may not be any case for the defence to answer
And on more or less the eleventh hour of the eleventh week the big guns of the United States government fell silent and the prosecution rested its case. Even with
four defendants mounting four defences, the second half
of the game will not detain us as long. Defence cases tend to “fade out,” as one federal prosecutor put it to me, either because there’s no case to answer or because the government’s case is unanswerable.
As to which applies in this scenario, both do. As hard-core anti-Blackists are the first to rage, the prosecution bungled this thing: what use is the United States government if it can’t even nail an obvious fraud like Conrad Black? So, at one level, there’s no case to answer. On the other, the case is literally unanswerable. The government’s argument is as follows:
a) All these sales of U.S. newspapers were dodgy.
b) Conrad Black never met a single buyer of these newspapers, never phoned one, never faxed or emailed any of them. He had nothing to do with any of these deals. He never expressed an opinion of them in a single memo.
c) But that just goes to show how cunning the conspiracy is.
How do you answer a case like that? This isn’t Clue: the government isn’t saying it was Lord Black with the revolver in the library. They’re in effect arguing that the lack of revolver and his absence from the library— and Jack Boultbee’s, and Peter Atkinson’s— merely testifies to the genius of the conspirators. And their argument re the fourth defendant—junior Hollinger in-house lawyer Mark Kipnis—is even more artful: the fact that Kipnis derived no financial benefit from the “$60-million crime” is proof that he was so eager to be admitted to the gang he was willing to commit it for free.
You don’t normally see that level of government paranoia outside late-stage basketcase dictatorships.
The prosecution talked a good game. Indeed, it talked too good a game. Just under three months ago, Jeffrey Cramer began his opening statement thus:
“You’re sitting in a room with four men who stole $60 million... Bank robbers wear masks and use a gun. Burglars wear dark clothing and use a crowbar. But these fourthree lawyers and an accountant—dressed in ties and wore a suit. These four, you see, were officers of Hollinger International.”
Multiple ties but only one suit? In the wreckage of Hollinger, there are multiple suits, but in the wreckage of this case there aren’t many ties between the government’s argument and the defendants. Let us overlook the argumentative aspects of the Cramer
WHILE THE COLLECTED EMAILS OF CONRAD BLACK ARE LINGUISTIC
statement, beginning with the assertion that this $60 million was “stolen” in the same way your purse was on the subway, rather than being part of the expense of doing business on sales of over $3 billion. In other words, for shareholders it may be a choice between letting the executives “steal” their 60 mil or not getting the three billion in the first place.
But put all that aside: an opening argument is entitled to be argumentative. The trouble is you have to live up to it. And by the time the prosecution case sputtered to a halt over whether Conrad Black’s option to buy Hollinger’s Park Avenue apartment had
included anything about heated towel rails, the macho swagger of Jeffrey Cramer had disintegrated into trivia and snippiness.
When Ron Safer, who represents Mark Kipnis and does so very effectively, wants to raise an objection, he doesn’t leap to his feet and huff: “Objection! Relevance,” or “Argumentative,” or “Cumulative,” or “Form,” or any of the other no-nos of the American courtroom that so perplex us foreigners. Instead, he stands, and in his best skeptical Noo Yawkese goes, “Your honour?”, and with palms raised ceiling-ward gives a magnificent stage-Jewish shrug. If I were the defence, I’d simply read back to the jury Jeffrey Cramer’s opening statement and punctuate it with Ron Safer shrugs.
Example Number One: “These four covered up their crime by falsifying documents.”
Really? Show us one. If you deploy the resources of the U.S. government to comb through a decade of anybody’s paperwork, you’ll always find some errors. But “falsified” documents? If this is a “cover-up,” it’s hiding in plain sight—in multiple filings disclosing the non-competes to Black and Co., posted
on the SEC website for every shareholder to see. Or as defence counsel Michael Schächter put it: “Basically everybody in the world with a computer could access Hollinger’s public filings?”
“Yes,” replied witness Darren Sukonick.
“But besides those people, it was a secret, right?”
Ah, but the government has star witnesses!
“David Radler, you’ll have a chance to judge him,” teased Jeffrey Cramer. “He will be supported by other witnesses who testify. And he will be supported by documents.”
If you want a “falsified document,” you might start with Cramer’s opening statement and that passage. The fact is the witnesses were not supported by documents. In the shorthand of the press, Hollinger gets easily lumped in with Enron and WorldCom. But
this is not a “paper trail” case. Radler connected the defendants to the conspiracy only through four vaguely recollected phone calls he could barely pin down to particular seasons of particular years and in one case was unable to say for certain whether the caller was Conrad Blackjack Boultbee or both. But documents?
If anything, the documents paint a world in which everyone other than the defendants was working on the “conspiracy.” On the CanWest deal, Sukonick, a lawyer at Torys in Toronto, was proposing sly strategies for designating the defendants’ private company Ravelston as the “receiving agent” for the non-competes and thereby obviating the need for any kind of public disclosure, and Peter Atkinson emails back to say, oh dear, he’s not terribly comfortable with that and thinks it’s important to get everything up front and with the fullest disclosure possible.
And, while Conrad Black is certainly the most loquacious CEO in corporate history, a man ever willing to take time out of his hectic schedule to respond at length at four in the morning to an email from some schlub he’s never heard of on the other side of the
world (go on, try it: even during this case, to the irritation of his counsel, he’s still a tireless correspondent), and while The Collected Emails Of Conrad Black (available now in an exquisitely tooled 112-volume set you’ll treasure forever, or can at least insulate your attic with) are entertaining and wildly abusive and linguistically ornate, they’re not actually evidence of any conspiracy. Indeed, he seems to have been too preoccupied cooking up fivesyllable insults for his chastisers to have had time to plot against them.
Even more perversely, the only people claiming to have “falsified documents” are the witnesses: buyers of Hollinger newspapers testified that they didn’t mean this particular clause on the contract they signed; Governor Jim (The Skim) Thompson and the other celeb directors testified that,
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sure, they signed off on everything but they hadn’t bothered reading it; and Paul Healy, vice-president of investor relations, testified that the memo on Hollinger’s Park Avenue apartment swap with Black was false but that he was the one who’d falsified it.
By the way, have you ever seen that BBC comedy show Little Britain? There’s a Tony
Blairesque prime minister with a devotedly camp aide driven to paroxysms of jealousy whenever the prime minister’s wife turns up at the office. That’s Healy’s relationship with Black: the gay groupie who turned. In the course of doing so, he determined to drag Barbara Amiel down. Let’s take it as read that Barbara is the high-living bitch she’s portrayed as in the press. But surely she spends to excess in Toronto and London, too? So how come it’s only the New York stuff (the tip to the Bergdorf doorman) we get to hear about?
Because the New York expenses ran through the revenge-crazed Healy’s office, and he leaked every itsy-bitsy expense item to the press and the special committee and the U.S. Attorney.
So the prosecution’s case rests on the word of a self-confessed serial liar (Radler), a trio of embarrassed dilettante directors (the audit committee) and Conrad’s neurotic gay limpet (Healy). But documents to back up their self-serving accounts? No.
“This was the shareholders’ money,” declared prosecutor Cramer. “It’s the woman who put Hollinger International stock into her retirement account. That’s who owns this company. It’s the guy who bought Hollinger International stock and put it into the college fund. That’s who owns this company. It’s not their [the Black cabal’s] company.”
So Cramer promised us victims. But he hasn’t produced any. Not one widow, not one college-fund saver, and certainly not the institutional investors in plush midtown offices. Disaffected as they are with Black, they’re just as furious with his useless successors and all the “corporate governance” investigators living high off the Hollinger hog. In other words, they feel they’ve been doubly victimized—first by Black, then by the “cleanup.” It’s certainly not Black’s company now. Instead, it’s the corporate governance queens’ and the lawyers’ and the government prosecutors’—and that’s cost shareholders far more money. The disease was manageable, the cure’s proved fatal.
As the Black team begins its defence, many observers are beginning to see the point of what seemed for most of the last few years a doomed stubborn refusal to bend to reality. But, unlike us, Conrad Black knew the evidence the government had, and he knew just how thin it was. M
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