JUSTICE

Justice in a strange land

Constant objections and huge advantages for the prosecution marked Black's trial

STEVEN SKURKA July 30 2007
JUSTICE

Justice in a strange land

Constant objections and huge advantages for the prosecution marked Black's trial

STEVEN SKURKA July 30 2007

Justice in a strange land

JUSTICE

Constant objections and huge advantages for the prosecution marked Black's trial

STEVEN SKURKA

It seems like months ago that I was sitting in a Chicago courtroom watching the first witness testify in the Conrad Black trial. Actually, it was months ago. His name was Gordon Paris, and he was Conrad Black’s successor as chairman of Hollinger International and had been instrumental in the corporate governance review of the company. I watched intently as Eddie Greenspan, Black’s legendary Canadian counsel, began the cross-examination of his client’s nemesis. He was barely into his warm-up pitches when a steady stream of objections came from the prosecutors. “Sustained,” was the response by the diminutive and youthful trial Judge Amy St. Eve. There was no opportunity for Greenspan to respond as he would in a Canadian courtroom. The calls were made instantly, like an umpire calling balls and strikes.

Greenspan had the look of a boxer winded by a succession of jabs to the abdomen. He struggled to maintain his composure and consulted with his team of Chicago attorneys. There were a series of long, awkward pauses at the counsel table as the basic rules of procedure were explained to the distinguished barrister and Q.C. from the land of the northern lights. Fortunately for his client, Greenspan would eventually regain his form.

This wasn’t the first striking example of the differences in the two countries’ systems of justice, however. It began with the process of jury selection, with each potential juror required to complete a lengthy and detailed questionnaire. During jury selection, Judge St. Eve reviewed some of the contentious answers in full view of the lawyers and defendants. Several of the prospective jurors seemed to have trouble grasping that simply because someone made tens of millions of dollars, it doesn’t mean he was necessarily engaged in criminal conduct.

This kind of insight is unavailable in Canada, where there are no written questionnaires, no lengthy interviews. Here, jury selection is a fairly routine and perfunctory

process. Lawyers have virtually no information to go on and it is entirely conceivable that in a break-and-enter trial, for instance, a couple of the jurors may be burglary victims themselves. It is not a jury of 12 angry men but rather 12 unknown men (and women).

Hence, the peculiar American industry of jury consultants. Evaluating and advising on potential jurors is a thriving business in the United States, one that earns hundreds of mil-

lions of dollars for the psychologists and communication experts involved. To my knowledge, in Canada there are no jury consultants. They would keep the bankruptcy bar busy.

Of course, in America, being a juror is not the anonymous public service that it is in the Commonwealth. Jurors regularly write books about their unique experiences and offer posttrial interviews about their deliberations. Platoons of reporters and young interns are ready to be stationed across the courthouse to corral jurors and obtain exclusive insights

straight from the jury room. In Canada, publishing details of jury deliberations would constitute a criminal offence. The jury leaves the courthouse as discreetly as it entered.

But in other ways, the U.S. system is far more discreet. Every day during the Conrad Black trial, the attorneys and judge would shuffle off to the side of the courtroom where their whispered conversations are recorded as the jurors patiently wait out of earshot. Sidebars were routinely held at the outset and conclusion of the day’s proceedings. In a nation promoting a robust freedom of expression, secrecy is at a premium in the courtroom. There are no sidebars in Canada. Everything is expressed plainly on the record in an open and public setting. In some circumstances, the jury is removed while the matter is vetted, but everything is discussed out in the open.

But if it seemed odd to have lawyers and the judge huddling and whispering in the corner of a courtroom, it just added to the overall lack of formality in the U.S. system. As a Canadian trial lawyer, I am accustomed to referring to my adversary as “my friend” and to stand whenever I object or address the judge. Dressed in my black robe, I respectfully make submissions to the court rather than tell the judge what I think or believe. I never address the prosecutor directly but only the trial judge. I bow my head in respect to the presiding judge as I enter and leave the courtroom.

None of this ceremony was evident in the Conrad Black trial. There was a relaxed atmosphere in the courtroom, punctuated by casual banter among the lawyers. On occasion, I felt like I was attending a comedy club rather than a solemn judicial proceeding that determined the legal fate of four men. But what the trial lacked in formality it made up for in work ethic. Judge St. Eve presided each day

for about an hour and a half longer than a typical Canadian counterpart. At times I wondered if the pace of the trial was too gruelling for the jurors, but none complained.

Beyond the style of the proceedings, there was a vast difference in substance as well. For example, the defence was required to provide timely reciprocal disclosure of its witness list. In Canada, the only disclosure obligation for the defence relates to expert witnesses.

U.S. lawyers also made great use of demonstrative evidence—such as videotapes, blownup projections of email messages and highlighted portions of the evidence—particularly during cross-examination and final argument. Canadian trial lawyers can learn a great deal about the compelling and persuasive value of such tools in an American courtroom.

But if there is a key difference in how the Canadian and American systems would approach the case against Conrad Black, it

centres on the star witness for the prosecution, the accomplice to the alleged $6o-million fraud scheme, David Radler. Radler’s deal with prosecutors called for a 29-month sentence that would likely be served in a Canadian federal penitentiary. He would be eligible for parole after six months rather than the mandatory 85 per cent of a sentence that he would serve in an American prison. Radler agreed to plead guilty and his sentence was adjourned to await the completion of his testimony at Conrad Black’s trial. This is typical in the American system but virtually unheard of in Canada. The concern of holding a witness’s sentence in abeyance until they testify is that it encourages helpful testimony for the prosecution rather than the truth.

This seems especially pertinent with Radler, an admitted serial liar whose evidence was unconfirmed in any material way. The judge ultimately instructed the jury to exercise great care and caution in considering his evidence.

Undoubtedly, a Canadian judge would have similarly cautioned the jury that it would be dangerous to rely on Radler’s evidence. But it’s difficult to know just what the jury took away from that, or any other testimony.

The prosecutors at the Conrad Black trial were quite adept at raising a series of objections which had the effect of disrupting the flow of cross-examination. Every day of the

Black trial saw more objections than you’d expect to see in a two-week trial in Canada. The prosecutors’ objections would generally be declared by title without any explanation. “Objection, foundation, Judge,” would be a typical example. Some of the objections would be foreign to a Canadian courtroom. “Asked and answered,” a favoured objection in the Black trial is, for example, not a permissible basis on which to object in this country.

Aside from frequent interruptions, the prosecution made great use of its position directly in front of and facing the jury, its right to get the final word on every witness, and on the case itself. Redirect examination by the prosecutors of their witnesses often essentially repeated the substance of the initial testimony. A Canadian judge would severely curtail a prosecutor’s ability to conduct a freewheeling redirect examination, but in the U.S. prosecutors have carte blanche to vitiate the impact of cross-examination.

There were very few witnesses for the prosecution who attended court without their own attorney present. On occasion, teams of lawyers would appear without any indication of what their role was. In over 20 years of conducting trials in Canadian courtrooms, I cannot recall a single occasion when a witness attended court with counsel present. And yet in the Chicago courtroom, witnesses would routinely huddle privately with their attorneys in the course of cross-examination. That would be severely frowned upon in Canada. Even the prosecutor in Canada is strictly prohibited from communicating with a witness in the midst of cross-examination.

Without doubt, however, the most extraordinary advantage for prosecutors in the U.S. system was their ability to reply to the defence addresses, ensuring that the first and final word always went to the government. Prosecutor Eric Sussman’s final rebut-

tal to the defence closing arguments lasted longer than six hours and repeated some of the same themes forcefully made in the original prosecution closing. The echo effect in the courtroom was resounding. The final instructions of the trial judge were presented in less than an hour. An equivalent charge to the jury in a three-month fraud trial in Canada would consume more than a day. There was no attempt to review the evidence and relate it to the charges. The theory of the parties was left to counsel to present, and the evidence was left to the jury’s memory, with no access to transcripts or demonstrative tools.

Once the jury left to deliberate, the standard courtroom hours were maintained. Unlike a Canadian jury, the jurors were not sequestered and were not required to deliberate on the weekend. It added to the casual atmosphere that dominated the trial and was unsettling for a Canadian like me, especially when you consider the astounding stakes involved. As one distraught defence attorney pointed out to me, if found guilty, his client could spend more time in prison than someone sentenced to murder in Canada. If you’re looking for differences, that one stands out above all others. M

THE MOST PROFOUND ADVANTAGE FOR PROSECUTORS IS THE FACT THAT THEY ALWAYS GET TO HAVE THE FIRST AND THE LAST WORD ON EVERY WITNESS IN THE CASE