JUSTICE

THE HUMAN DRAMA THE JURY DIDN’T SEE

One lawyer called the trial 'show business,’ but backstage, Black's defence team was at odds, alienating the jury and blowing its one shot at winning the case

MARK STEYN July 30 2007
JUSTICE

THE HUMAN DRAMA THE JURY DIDN’T SEE

One lawyer called the trial 'show business,’ but backstage, Black's defence team was at odds, alienating the jury and blowing its one shot at winning the case

MARK STEYN July 30 2007

THE HUMAN DRAMA THE JURY DIDN’T SEE

JUSTICE

One lawyer called the trial 'show business,’ but backstage, Black's defence team was at odds, alienating the jury and blowing its one shot at winning the case

MARK STEYN

Just before the case went to the jury, Conrad Black’s two lead attorneys sent him a demand for an additional million bucks each. No messing around with billable hours and 15-minute increments and $27.59 for photocopying: just a nice round seven-figure sum by way of supplementary retainer.

A day or two before closing arguments to the 12 men and women who’ll decide your fate is no time to pick a quarrel with your lawyers. Or, at any rate, yet another quarrel to add to those you’re already having, and they’re having with each other, and the American lawyer’s associates are having with the Canadian lawyer, and the Canadian lawyer is having with his own associates, and your wife is having with all of them. So Conrad paid up. After all, what’s another seven-figure sum here or there? In the Hollinger meltdown, it’s chump change in the scheme of things: what’s left of Lord Black’s former company has sluiced a nine-figure sum to its legal “advisers,” and, back in the good old days when Richard Breeden was penning lurid reports on Hollinger’s “corporate kleptocracy”, the fallen media baron was accused of looting the best part of half a 10-figure sum. In the end, after four years, he was found guilty of stealing $2.9 million—or about what

he’s spent on lawyers this last month, and a fraction of what the taxpayers of the United States have paid up in order to nail him.

Like most non-lawyers, I always figured there must be a reason why these guys command huge fees. Granted, if you’re up against the resources of the state, you certainly need someone to fillet the hundreds of thousands of memos and faxes and find the exculpatory phrase or the mitigating circumstance. And it helps to have someone who can bring up the precedent of Regina vs. Jones in 1937... But by the time it all winds up in court, there seems a lot less to it than meets the eye. When it was over, Pat Tuite, an old Windy City lawyer representing Hollinger money man Jack Boultbee, shrugged, “It’s show business,” sounding for all the world like Richard Gere in the movie Chicago about to give ’em the old razzle-dazzle. At the close of the trial, Judge Amy St. Eve gave a little speech saying that rarely had she had the opportunity to listen to lawyers of such brilliance on all sides. In a moment Bob Fosse and the rest of Chicago’s creators would have appreciated, the U.S. marshal sitting across the aisle from me mouthed along with her allegedly heartfelt impromptu paean word for word.

Alas, in the real Chicago, the razzling was less than dazzling. Lord Black of Crossharbour is now a convicted felon. And those of us who believe he’s innocent of any crime have to

Green^analienat^ed^ tering to apotogge ior his agg*ess,v-ness

acknowledge that reality. Whether the felon himself does is another matter. In the 48 hours after the verdict, he sent multiple emails to friends and members of the media: “This war has gone on for nearly four years and the original allegations have been worn down to a fraction of where they started,” he wrote. Of the 13 charges against him, he was found not guilty of nine. “We got rid of most of them,” he said, “and expect to get rid of the rest on appeal.”

And if this was a soccer match he’d be right: Crossharbour 9, Northern District of Illinois 4. A cracking victory.

But it’s not soccer. With multiple counts attracting long jail sentences and severe financial penalties, the government only needs to put one ball in the back of the net to ruin your life. This they did. And “legal experts” in the United States think Conrad Black is making things worse for himself by making dismissive remarks about having this “tiresome miscarriage of justice” reversed in the court of appeals. When it comes to sentencing at the end of November, Judge Amy will look on the convicted fraudster and obstructer of justice as she would any low-life murderer or rapist: is he showing any contrition for his

crime? According to the analysts, loftily brushing it aside as a “tiresome” technicality to “get rid of” is a good way to wind up serving the maximum 35 years rather than five, with three suspended.

They’re missing his point. Conrad maintains his innocence, and in that sense 35 years of mailbag-sewing and licence-plate hammering in a Midwestern dungeon or six months of “golf therapy” and community theatre in a David Radler-style British Columbia country club makes no difference: it’s not the loss of his liberty, it’s the loss of his reputation. To extend the drearily predictable Shakespearean comparisons, if Lady Black is (as routinely sneered) Lady Macbeth, Conrad is Othello (and Alana is Cordelia). Not for the first time, those legal analysts don’t understand Lord Black: he’s acting in accordance with his deepest conviction, not his criminal conviction. And not for the first time, Conrad Black doesn’t understand the U.S. justice system, where every day innocent men plead guilty to something, anything just to make the government bugger off and destroy some other fellow’s life.

The contradiction became apparent soon after the trial began in March: the accused’s

view of the case was never reflected in the legal strategy of his cross-border odd couple, Toronto Q.C. Eddie Greenspan and Chicago mob lawyer Ed Genson. Of course, a difference in defendant’s and counsel’s general line is not uncommon in criminal matters. Take another celebrated Genson client, R&B star R. Kelly, of the blockbuster inspirational anthem I Believe I Can Fly. When a 27-minute video purporting to show Mr. Kelly urinating on a 14-year-old girl turned up, the client took the position that it wasn’t him in the video, while the attorney took the position that, regardless of who was doing the urinating, the girl was over 18. The first is an absolute defence: I Believe That’s Not My Fly. The second is more qualified: I Believe This’ll Fly With The Jury. Ed Genson is a veteran defender of gangland ne’er-do-wells and, faced with clients of no redeeming virtue, his trick is to drag everything into the grey murk of “reasonable doubt.” He does this very disarmingly: he’s a big tousle-haired bobbleheaded old charmer in a motorized wheelchair whose apparently chaotic courtroom manner can often be lethally effective. Except that, in this case, it wasn’t.

THREE WEEKS AGO in Maclean’s, I wrote that, in the government’s closing argument, Julie Ruder “had laid down a challenge for the defence: This is our narrative. What’s yours?”

That was the question Conrad Black’s lawyers never answered: if Ms. Ruder’s deft knitting together of incidents at Hollinger round the turn of the century was false, then what’s your alternative version of events? Black’s guys were effective at winning points, but after a while you began to wonder if they’d lost sight of the overall game. The points scored against the prosecution—David Radler’s a liar, the audit committee were lazy self-servers, the lawyers investigating the Hollinger kleptocracy didn’t keep proper transcripts— all seemed to undermine the government’s witnesses without de-undermining Conrad Black. Perhaps it would have been enough in some organized-crime trial, where the fact that your guy is a sleazebalHs a given, and spattering some of the sleaze all over the cops and the stoolies makes it a wash. But Black was a company chairman and the issue was his probity, and simply monkeying around with the witnesses seemed insufficient.

What was missing in the Conrad Black trial? The answer: Conrad Black. At one recess during the trial, Conrad and I were chatting about the afternoon’s evidence. It had been another one of those days, full of testimony from Paul Saunders, the Cravath lawyer whose advice to Hollinger on non-compete agreements contradicted that of Beth DeMerchant, the

The two Eddies were a dream team in that, if one cast an eye over at their table on almost any mid-afternoon, at least one was aslee

Torys lawyer whose advice to Hollinger contradicted that of Bud Rogers, the previous Cravath lawyer whose advice contradicted that of Darren Sukonick, the previous Torys lawyer.

So where was Conrad in all of this?

Somewhere thousands of miles away, having tea with the Queen. Whole days went by with nobody mentioning him. Like a bizarro version of Six Degrees of Kevin Bacon, nary a witness seemed to get within 106 degrees of Conrad Black. His co-defendants Jack Boultbee, Peter Atkinson and Mark Kipnis were men who in several instances had actually met some of these witnesses, or at least sent them a fax back in late 1999But not Conrad. That afternoon, he and I were over by the

12th-floor elevators, chuckling merrily over his absence from yet another day’s testimony, when his daughter Alana, who’d been smiling politely during the banter, interrupted us to point out an important qualification to dad’s otherwise total irrelevance to the proceedings: “Well, except that you did get the money.”

Whatever one feels about Conrad Black (excepting perhaps the remarkable number of my readers looking forward to Lard [sic] Black getting rogered senseless by tattooed cellmates for the next two decades), he is surely more than the sum of his non-compete fees. There is something absurd in the idea that his non-compete agreement for the Jamestown Sun of North Dakota will now weigh more in the scales of history than his revitalization of Britain’s Daily Telegraph, one of the world’s great newspapers.

But whose fault is that? I don’t think the chairman of one of the last press empires, biographer of presidents, confidant of princes and prime ministers, realized how diminished he was simply by being seated in the centre of Judge Amy’s poky windowless courtroom surrounded by a clutter of computer screens and files and lawyers and FBI agents. Certain jurors said afterwards, more or less entirely on the basis of sitting a few feet away from him day after day, that they found him “arro-

gant” and thus unlikeable. I wonder whether it wasn’t that he just seemed too outsized for the proceedings: to modify Gloria Swanson, Conrad Black was still big, but the case had got small. Who was this preposterous soidisant baron ennobled by Her Britannic Majesty to be demanding non-compete fees from North Dakota community papers? When Black declined to testify in his own defence, the result was that he was defined only by the glimpses of him permitted by the government: he was the guy who, in Alana’s phrase, got the money, and sent boorish emails, and installed heated towel rails in his Park Avenue apartment. Had he been put on the stand, he would certainly have been tripped up by government lawyers in some areas, but he would have opened up others that allowed the jury to see Conrad Black as a man in full, warts and all, rather than only the warts, the unsightly carbuncles of non-compete fees and company-jet perks and a security video of a British peer taking boxes down the back stairs of a Toronto office building.

Take that last point. Conrad was found guilty of “obstruction of justice” and faces 20 years in jail. It was always the most seductively open-and-shut charge against the defendant: he’s on that security video lugging his boxes to the trunk of his car and no matter how you finesse the thing he shouldn’t

be taking the stuff out the building. But everyone who knows downtown Toronto appreciates that 10 Toronto Street is more than Hollinger’s “Toronto office.” It’s a landmark, a beautiful miniature in the heart of the skyscrapers. Built as a post office in 1853, it has a Georgian elegance that (if you’ll forgive a touch of the Sotheby’s international realty pitch) evokes in its fluted pillars and gilt mirrors the reassuring self-confidence of a London merchant bank. If you want a “Toronto office” you get a dump on the edge of the highway somewhere, like the National Post building in Don Mills. 10 Toronto Street isn’t like the Telegraph offices in London’s Docklands or even Hollinger’s New York office in the Henri Bendel building on Fifth Avenue. It was something intimate and essential to Black’s sense of himself. Barbara told me he had first been taken there as an awed eightyear-old by his father.

The last time I stayed at the King Edward Hotel, I was padding around the streets and found myself on the sidewalk opposite 10 Toronto, and couldn’t quite believe that a half-century of Argus-Hollinger corporate continuity had ended with Conrad Black’s eviction. Last year, waxing eloquent about his mahogany desk and the statue of Marshal Foch, Peter C. Newman wrote about Black having “left the building” and eulogized the

. „w« lawyers undermined the Even when his la y they seemed

“office” for our back-page obituary slot. That seems appropriate. For Conrad it was certainly a kind of death, worse than losing the Chicago Sun-Times or the Jerusalem Post. After he was forced out as chairman of Hollinger Inc. (Hollinger International’s Canadian parent), he never set foot in the place again. He never drove past it. Had I asked him to swing by the King Eddie for afternoon tea, the chauffeur would have known, without being instructed, to find a route that avoided Toronto Street.

And then one day just before the Victoria Day weekend he got a call from his assistant, Joan Maida. The new bosses at Hollinger Inc. had decided to evict him and Joan and the rest of the old gang, and with just a week to go she’d been packing up. Yes, there was paperwork relating to the disputed transactions, copies of which every interested party

already had in triplicate. But there were also a lot of personal effects. And when Joan told him a security guard had prevented her from taking the stuff out, even though the new chief executive of Hollinger Inc. had given her permission, Conrad Black drove down to 10 Toronto Street for the first and last time since his removal as chairman. Did he know that what he was doing was in breach of his successors’ “document retention policy”? Probably. Did he understand it was in breach of an Ontario court order? If he’d stopped for a moment, he might have remembered that. But neither of those is admissible in a U.S. “obstruction of justice” case. All that counts are official U.S. proceedings, such as the SEC investigation and any likely criminal case. And at that afternoon nothing could have been further from Conrad Black’s mind. He was thinking of the last quarter-century

of his life, of memorabilia going back to his Duplessis days. There was no intent to obstruct justice in any hypothetical “official proceeding.” He wasn’t looting the filing cabinet. He was the eight-year-old boy who had achieved his dream, and lost it.

You can’t understand that day’s events by calling to the stand his loyal secretary, or by producing the phone and email logs of his Washington lawyers to demonstrate that they had never informed anyone in Toronto that the SEC had put in a document request. It’s not enough to point out that, though the prosecution portrayed the heist as occurring after dark when the building was closed, it was, in fact, 3:30 in the afternoon and the parking lot was full. What happened that afternoon can only be explained by understanding what was in Conrad Black’s head. The circumstantial »

evidence was too appealing to be overridden by anything but the testimony of the defendant himself. One can have different views on the non-compete payments, but the obstruction charge—which will send Black to jail for the rest of his life—is a prima facie miscarriage of justice.

HOW DID IT HAPPEN? At some point in the last few months, it became clear that the defendant was facing a self-inflicted double jeopardy: he had to survive not just the prosecution but his own defence team. Hey, you scoff, tell it to the punk who holds up the liquor store and has to make to do with some desultory conscript from the public defender’s office. Very true. But, as one federal prosecutor unconnected with the case marvelled to me, “How did this guy end up with these lawyers?”

Well, way back in March, at the beginning of the trial, the defendant told me he’d deliberately eschewed the top-of-the-heap creamof-the-crop A-No. 1 “dream team” types because those slickers didn’t need the business and so didn’t put in any real effort. Dropping to the next tier would give him rough diamonds prepared to get their knuckles bruised. Hmm. As it happened, the two Eddies did turn out to be a dream team at least in the sense that, if one cast an eye over at their table on almost any midafternoon in the last month or so, at least one was asleep. By the closing weeks, often both were asleep, though evidently they came round at least long enough for each to send the client that last-minute invoice for an extra couple mil.

How did Black select his dreaming team? Well, he left it to his Canadian lawyer to find an American lawyer, and Greenspan chose Genson because his daughter used to work for him, which isn’t the kind of thing most of us would want to gamble 101 years of jail time on. And Black chose Greenspan because... well, that’s a complicated story.

At several stages over the last four years, the defendant had had some pretty pricey legal muscle, from star litigator Brendan Sullivan to the affable Greg Craig, who defended Bill Clinton during the impeachment trial mainly because, as one commentator noted, he was a rare Slick Willie lawyer you could put on TV without frightening the children. But, when the U.S. Attorney in Chicago filed the criminal charges, Conrad Black found himself with a cash-flow problem: the feds had seized the $lO-million proceeds from the Park Avenue apartment sale, and successfully tied up enough of his assets hither and yon that he didn’t have the wherewithal for the big-time mouthpieces. That’s a time-honoured technique of the United States government: they not only buy up the witnesses with plea deals and immunity agreements and SEC “Wells notices,” but they like to ensure you don’t have the wherewithal to do any legal shopping of your own. Hence, choking off the cash flow, without which your

To his crediti Greenspan destroyed Radler’s credibility so thoroughly that the government disowned its star witness in its closing arguments

options narrow dramatically. Brendan Sullivan, for example, wanted a $25-million down payment to take the criminal case. Whether or not he would have won it for Conrad, the 10 mil from the apartment would have come in mighty handy toward the cover charge. Why did the feds seize the dough? Because, as the U.S. Attorney argued in this case, Black’s purchase of the apartment from Hollinger was a theft from the company’s shareholders. In case you’re keeping score, the jury in Chicago found him not guilty on all charges relating to the apartment transaction. Yet the U.S. government is holding on to the money.

Why?

Just ’cuz. Because they can. And because the presumption of innocence which lies at the heart of English law is so corroded in modern U.S. jurisprudence that it seems entirely natural for the government to seize the proceeds of a “crime” before it’s proved you’ve committed one. Just to run the numbers: the former SEC chairman Richard Breeden, in his investigation of Hollinger International, claimed that Black’s “corporate kleptocracy” had stolen $400 million from the company. On the eve of this criminal trial, the government was alleging a theft of $84 million. By the time the trial began, they were down to $60 million—or 15 per cent of what the Black gang was originally accused of looting. And at the end of the trial the jury found Conrad guilty of stealing $2.9 million—or less than one per cent of what Breeden claimed. But Black needed many more millions just to stay in the game—and every time he tried to access any of his assets he found the authorities had blocked his path.

So, when the indictment was filed and he required someone just to go to Chicago and represent him in court, there weren’t a lot of takers. The novelty of a Canadian barrister appearing in an Illinois court arose because Eddie Greenspan was the only guy willing to get on a flight to O’Hare when the big shots in Washington and New York declined to do so. And by the time Conrad was flush enough to be a little pickier in his representation, the old professional courtesies meant that no johnny-come-lately was willing to step in and supplant Greenspan or Genson.

Both men were great lawyers in their day. What wasn’t clear was whether their day was the spring of 2007 Genson seems to think scripts are for hidebound, uptight squares, so he improvises his way through everything in a rambly manner intended to disarm the witness into making mistakes. Along the way, he makes quite a few himself. For me, the first alarm bell rang during his opening statement—not what passed for his defence of his client, which Barbara Amiel described to me

as “backing into every point,” often to complete incomprehensibility, but something that should have been easier to pull off, a visual party piece Genson had deployed many times before to illustrate that there are two sides to every story. He holds up his palm to the jury and says “Can you see my hand?” When they nod, he says, “No, you can’t,” and flips it around to show the back. “Now you can see my hand.” But even this set piece was garbled so that its effect was diminished: it wasn’t an encouraging sign to see a lawyer bungle the stuff he’s done a gazillion times before. And, for anyone paying attention, you couldn’t help noticing that, if there were two sides to every story, Genson seemed to be in no hurry to provide the B-side to the government’s version of events.

As for Eddie Greenspan, his side of the story seemed to be mostly about him. If you were following the case in the Canadian media, you’d be forgiven for thinking the local angle was the lawyer rather than his client. “How is Eddie Greenspan doing?”

demanded Paula Todd on CTV’s The Verdict. Answer: Eddie Greenspan’s doing a dozen exclusive interviews a day. He reminded me of an agent I used to have who was very hard to get a hold of. I’d call him up and his secretary would say, “Oh, he’s with Vanity Fair right now.” And I’d enquire hopefully as to which of his clients the perfumed glossy had chosen to feature, and she’d say, “Oh, no. It’s not for any clients. Vanity Fair’s doing a profile of him—‘the king of a new breed of super-agents who are changing the way the industry does business.’ ”

“Oh, really?” I’d say. “Well, if you could have him call me next wee...”

“I’ll try. But he’s doing a photo shoot for Paris Match on Monday, and then on Tuesday he’s got...” Likewise, morning, noon and night, the Black-trial media consumer could find Eddie Greenspan discoursing on his American court debut, his Niagara Falls childhood on the Ontario/New York border, his admiration for Clarence Darrow, his homesickness for Toronto, even his fondness for

After Black’s own defence 'eviscerated’ his character in court, Amiel joked he would seem like a 'teddy bear’ if he took the stand

apple pie. “If my wife knew I was ordering this, she would kill me,” chuckled Greenspan, whose missus evidently subscribes to the one paper not running “Famed Canadian Barrister Orders Lunch” stories.

But enough about what Greenspan thinks, what do you think about Greenspan? “Lord of the Courtroom,” declared a Toronto Sun headline. As Joe Warmington cooed:

“Clarence Darrow, Eliot Ness and Al Capone are three names that come to mind when you are talking justice, Windy City style.

“Who would have thought a talented lawyer from Canada named Eddie Greenspan would become part of that illustrious club? Certainly not the kid from Niagara Falls, who is arguably Canada’s most famous defence attorney.”

Sometimes the maple boosterism isn’t enough. “You Canadians keep gushing over

how great this guy is,” another prosecutor in the U.S. Attorney’s office said to me. “I don’t see it.” Greenspan did a very necessary job in tearing down the star witnesses when every other lawyer in the room was way too deferential: without the Toronto bruiser, Governor Jim Thompson would have been left to nothing but tongue baths from the likes of Pat Tuite, who began his cross-examination with, “Governor, you and I have known each other for 40 years. When we see each other around town, it’s ‘Jim’ and ‘Pat.’ But today in honour of your distinguished service to our great state, I’m going to address you as Your Gubernatorial Majesty,” or whatever it was. Greenspan put a stick of dynamite under Thompson and blew him off Mount Rushmore. He destroyed the credibility of Marie-Josée Kravis and David Radler so thoroughly that in its closing arguments the government wound up disowning both the audit committee and Radler.

But Greenspan’s technique came at a price. He alienated the jury to the point that he was obliged to devote part of his final remarks to apologizing for his aggressiveness. And backstage he alienated even more of his colleagues, and without apology. In the early weeks, a lawyer called Carolyn Gurland sat opposite Conrad at the defence table. She was a petite blond and one day turned up in court sporting a bare midriff, which isn’t a look you see on many lawyers, if only because in America very few middle-aged trial attorneys can carry it off, and in Canada the judge tends to complain if you show up in a cutaway robe. I don’t mean to imply Mrs. Gurland was merely room-papering eye candy, although Conrad seemed happy enough to pass the day contemplating her perkiness. In fact, Barbara Amiel regarded her as “the

best lawyer on the team.” But she disappeared three or four weeks in: she’d had a falling out with Greenspan. By the end, Jane Kelly, who’s worked with him for the best part of two decades on high-profile cases like the Gerald Regan trial, had also fallen out with her longtime colleague. When he busted up with her, he forgot that she’d been in charge of booking their accommodations in Chicago, and in a move characteristic of the internecine vindictiveness on the Black team, Greenspan wound up getting bounced from his hotel room.

The biggest personality clashes of all were between Greenspan and Genson, and between both Eddies and their client. Unlike the other defence teams, it was never clear which general was supreme allied commander, and a lot of the time neither was. If the rap against government witnesses was that they were over-rehearsed into performing seals, the defence witnesses seemed barely to have been rehearsed at all. Such witnesses as were called, that is.

THERE IS A CERTAIN ritual that attends bigtime U.S. courtroom analysis: on the one hand, it’s understood that the hotshot trial lawyer cannot afford to let his dodgy client take the stand. On the other, it’s universally agreed that a defendant who declines to testify damages his own case. This would seem to be especially true in a trial revolving around broad questions of probity and propriety. Initially, Genson seemed to be setting his client up for a star turn. In his opening remarks to the jury, he addressed some of Conrad’s more ornate utterances—“I am not prepared to re-enact the French revolutionary renunciation of the rights of nobility,” etc. “Yes, he’s snotty,” Genson told the jurors. “And arrogant,” he continued, warming to his theme. Afterwards, Barbara asked me what I thought of this character evisceration, and I said I assumed he was engaging in a cunning lowering of expectations. Not entirely persuaded, Barbara smiled. “By the time Conrad takes the stand,” she said, “he’ll seem as cuddly as a teddy bear.”

But instead Genson planted the thought and never tended to it again—as he did so often in this case: in his opening statement he also said that what happened at Hollinger wasn’t “a theft by Conrad Black, but a theft from Conrad Black.” A good line that suggested the other side of the story: a man works for 40 years to build up a great company only to have it snaffled out from under him and dismantled by a combination of lawyers, regulators and usurpers with no equity in the business. But, having sloughed off the thought on the first day, Genson never returned to it.

We Joked *°y." SL“"™“! ,

At dinner one night, Conrad returned to the theme of his lawyer’s opening remarks. “This nonsense about me being ‘arrogant,’ ” he said, taking a swig of Chardonnay.

I took a deep breath. “Well,” I began, choosing my words with care, “the difference between your media caricature and Barbara’s”—power-crazed partygoing Zionist trophy clothes-horse bitch—“is that yours is grounded in a, er, kind of reality...”

“Yes, yes,” he said. “But ‘snotty’ isn’t the right word. Genson has an inadequate vocabulary.” Fair point. I think my former editor at the Telegraph, Sarah Sands, got closer to the truth when she wrote that “many of us found his mad rhetoric too comic to be offensive.” Conrad was parodically imperious: no genuinely “arrogant” CEO would fire off emails referencing the French nobility. As a newspaper publisher, he was almost boundlessly indulgent of us hacks. It was left

to the successor regimes—the Aspers in Canada, the Barclay brothers in Britain, the new management at Fairfax in Australia—to do all the things the media ethics bores always accused Black of planning: mass firings, centralizing and cost-cutting, editorial interference. By contrast, Conrad was a pussycat. If you read all the hostile biographies, you start to spot how few really damaging anecdotes there are: the same handful come round over and over. There’s one lady journalist in London who was invited at the last minute to a Black dinner party to make up the numbers and then, when the numbers shifted again, disinvited, and she’s dined out on the story ever since—because there are so few like it. In his native land, Conrad’s “arrogance” is presumed to be un-Canadian, which would come as news to Pierre Trudeau, or even Jean Chrétien. But the point is this: if you scan the letters pages of the Globe and Mail or the more fevered websites, the arrogance charge is levelled mostly by those who’ve never met Black. Those who have met him offer something generally more rounded. So why not let the jury get to meet him? Let Conrad be Conrad! It could hardly be more disastrous

than letting Patrick Fitzgerald and Richard Breeden and Tom Bower and Marie-Josée Kravis and Paul Healy be Conrad.

Well, his performance in 2004 in court in Delaware was widely agreed to be a fiasco: Judge Strine described Black as “evasive and unreliable” to such an extent that it was “impossible for me to credit his word.” Then again, Conrad was in the first months of his living nightmare and not yet aware of the seriousness: he was out till 3 a.m. the night before with Paul Saunders, one of America’s top 500 litigators and a man he believed to be on his side. In Chicago, in the spring of 2007, he and the big-league attorney again found themselves sharing a courtroom. But this time, counsellor Saunders was a government witness. For a so-called bully, Black was oddly indulgent of many people who turned out to have agendas

explicitly hostile to his.

Conrad Black will never be the most selfaware individual, but he’s more so than he was three years ago. Could he have restrained himself from orotund denunciations of his foes? Up to a point. Would he have flubbed critical exchanges on important matters? Undoubtedly. But could he have lost a rally here and a game there and still have won the match? Could he have introduced himself to the jury in such a way that the big picture was convincing, notwithstanding a few blemishes in the background? I think so. Conrad Black told me he wanted to testify; Barbara Amiel wanted him to testify. But neither of his lead lawyers was keen, and, remarkably, neither was prepared to put in the necessary work to prepare not the defendant but themselves

for the ground they needed to cover and the weak points the prosecution might exploit. Black found himself in the bizarre position of a defendant willing to answer all questions but unable to get his attorney to ask him any.

How did this happen? Greenspan and Genson had no clear lines of authority, and for an informal relationship to work they would have to have had a more compatible courtroom style. The night before closing arguments, the Canadian Eddie said he needed to see what the American Eddie was going to say so he didn’t duplicate it. The American Eddie wouldn’t tell him: apparently, he wouldn’t know what he was going to say until he got up there and started saying it. Both men stayed up half the night preparing:

Greenspan got by. Indeed, it was one of his better performances of the trial. But Genson fell apart in the afternoon. Woozy and stumbling, he made no sense and was obliged to ask the court to break for the day and allow him to resume the following morning. “I felt just terrible about what happened yesterday,” he told me that lunchtime. “I’m too old to be up all night. I can function in the morning, but it gets to me in the afternoon.”

Gee, thanks. You felt terrible? What about the client? He’s been working up to this scene for three years and, come the big moment, you’re sleep-deprived and incoherent? A day or two later, Genson came motoring up the corridor to me in his wheelchair. “You guys in the media,” he said, “don’t understand the way trials work.” Probably not. In my experi-

He was facing a self-inflicted double jeopardy: he had to survive not just the prosecution, but his own defence team

ence, we guys in the media understand very little about the way any of the stuff we cover actually works. “Do you play billiards?” he asked. “That’s what a trial’s like.” And he started to explain that it wasn’t about hitting the ball into the pocket but about lining up the shot to ricochet off the red ball on to the other cue ball. At least, I think that’s what he said. It wasn’t clear to me whether he was using “billiards” in the very specific British sense or the more general American sense. I wondered whether Eddie Greenspan, as Black’s Canadian lawyer,

knew which definition was operative. In a defence team from two different legal traditions, it helps if your metaphor means the same thing in both languages. Otherwise, you can easily end up well and truly, as the Brits say, snookered.

I mentioned it to Conrad Black a day or two later. “Pshaw!” he said, or words to that effect. “Genson doesn’t play billiards. I’ve got a Brunswick Balke table, and when he stayed with me he didn’t want to play on it at all.”

So the defence staggered on, setting up shots but never quite potting the ball. The government alleged three “schemes”—the “U.S. community newspapers” scheme, the “CanWest” scheme, the “perks” scheme— and then upgraded them to racketeering, with tax fraud. The jury acquitted on racket-

eering and tax. They found Black & Co. not guilty on two-thirds of the “schemes.” And on the remaining one—the U.S. scheme— they convicted only on one narrow sliver. But that’s enough to put four men behind bars for the rest of their working lives. I suggested afterwards that the U.S. Attorney’s office might usefully adopt as its motto the IRA’s message to Mrs. Thatcher after the Brighton bombing: “You have to be lucky every time. We only have to be lucky once.” A couple of jurors professed astonishment at the length of the sentences: 20 years for

removing boxes from that office building? They had no idea.

Well, why not? Why were they not aware that for the fellows whose fate they held in their hands the choice was between ongoing ruination or a chance to crawl out from the rubble? Where was the sense of lives in the balance? It was all such fun— the Friars’ Club roasting between the legal teams. But the memory I’ll take away from the trial is one instant when Alana Black let her guard down and in her crumpled smile you understood that what was a game for the lawyers and the lads in the press box was just horribly sad for a daughter celebrating her 25th birthday in a foreign city with a father whose availability for next year’s festivities was far from certain.

Don’t get me wrong, I like a laugh. But, in the leaden vaudeville of the court proceedings, I found myself pondering the limitations of jokes. Gus Newman, the whiskery octogenarian Noo Yawker and a lawyer for Jack Boultbee, had an amiable Catskills patter, but after a while the gags about an early lunch and his advanced age all began to seem a bit generic, like a lounge act who announces it’s a privilege to be back in your wunnerful city just so long as you don’t ask him to name the particular wunnerful city it’s a privilege to be

back in. Throughout the trial, the judge laughed, the lawyers laughed, the press laughed. But the jury was more parsimonious. Forty bucks a day plus carfare isn’t enough to sit through sub-Borscht Belt shtick eight hours day after day, week after week as the last snows of winter melt into a long steamy summer. Forty bucks a day is only worth it if it’s no joke, if it’s serious, if there’s something real at stake.

The great missed opportunity of the Boultbee defence came in an exchange I discussed with CTV’s Steven Skurka but which other-

wise, as far as I could tell, passed unnoticed by almost everyone. The government had had some sport handing out copies to the jury of the Mammoth Times, a community newspaper serving a California ski resort and the only property operated by a Hollinger subsidiary at the time it signed non-compete agreements with Black, Boultbee and Co. The prosecution’s argument: why would the Mammoth Times need a non-compete with Lord Black? In closing arguments, Newman sought to make the point that the non-comp wasn’t with one little rinky-dink small-town nothing paper but with Hollinger and all its affiliates worldwide. So he asked Eric Sussman, the government’s lead prosecutor, if he still had that copy of the Mammoth Times to hand.

“It’ll cost you a buck,” quipped Sussman. Or rather: “quipped” Sussman. Nobody laughs at the remarkably insecure boy prosecutor’s lame-o gags, least of all the jury. So ol’ Gus fished in his pocket and pulled out a greenback and muttered something about never letting it be said that he didn’t give the government its due. And he was rewarded with a modest titter.

Wrong. What he should have done was round on Sussman dripping withering moral outrage: “What you think costs a buck could cost my client 56 years in jail! That’s the real cost, Mister Prosecutor! This trial may be a joke to you, but it’s not to Jack Boultbee!” Etc. If you’re a juror, you’re only sitting through this thing for four months because it matters. If it’s just knockabout, who cares?

You don’t rescue Sussman’s stillborn gags, you eat ’em up and spit ’em back in his face. As show business (in Pat Tuite’s characterization), this trial was great business, not so good on the show.

It was a question of tone: as much as the jokes, even the furniture seemed to conspire against the accused. If you take four defendants plus their legal representation plus a swollen U.S. government team including various deadbeat FBI agents and postal inspector Dave Leonhart who did nothing but sit around at the taxpayers’ expense, by the time you’ve tossed all of them plus their files and laptops into a small courtroom, it won’t look like a courtroom anymore, so much as a corporate seminar someone booked into too small a conference room. The defence got stiffed on the layout. The government table was right next to the jury box, enabling Eric Sussman and his team to face the 12 women and four men and smirk and yawn their way through any unfavourable testimony. Prosecution and jury were so close that I worried in mid-trial, when my favourite luxuriant blond juror was popping ever bigger gum bubbles in court and the insecure Mr. Sussman was wearing ever more bizarrely capacious suits, that her bubble gum and his shoulder pad would meet in some almighty collision, a big pink Zeppelin slamming into a bespoke office building. The coziness between government and jury was in marked contrast to the distant defendants and their lawyers, glimpsed intermittently between computer screens. One of the sawier reporters said to me that she only realized who Jack Boultbee was two weeks before the end of the trial. For the previous three months, she’d thought he was one of Peter Atkinson’s lawyers. I wonder how many of the jury never figured it out.

CONRAD BLACK’S life’s work is in ruins. At the height of his empire, Hollinger International had two kinds of publications: there were the assets—the cheap’n’cheerful cashcow community papers in North America run according to David Radler’s belief in the three-man newsroom, two of whom also sell advertising; and then there were the flagships-the Telegraph, the National Post, the Spectator—which Conrad saw as vehicles for advancing ideas, for making history. A couple of months before he was ousted, he tried to persuade me to take a job in London with the Daily Telegraph. We didn’t get around to talking salary and benefits, or, alternatively, about the production schedule and circulation. Instead, he presented it in epic terms: ‘It’s time to save England!” he said, putting exclamation points on everything. To save it from the European Union, and other preda-

tors. A few weeks later, Conrad was gone, and the Telegraph was just the Jamestown Sun writ large, another asset to be disposed of in the interests of maximizing shareholder value. The conviction of Black for fraud requires us to believe that he would jeopardize his peerage, his influence and his A-list party invites for a few million bucks in non-compete fees from David Radler’s half of the empire. Alternatively, you can take the view advanced by colleagues that Radler was sick of Crossharbour (as he called him) and his flagships and had determined to get out of Hollinger, take his kind of small-town papers with him on very favourable terms, and ensnare enough other people in his machinations that, if he fell, they would all fall.

Newspapers are a dying business. The only thing worse than an imperious eccentric megalomaniac who wants to make history are guys like the “septuagenarian banana marketer” (as Black calls him) who now runs the Chicago Sun-Times: the newspaper business isn’t like being in bananas, it is bananas. Conrad Black, to quote Sarah Sands again, had ‘an instinct which is now lost in so much of the industry—that there should be a certain glory, an argumentativeness, an intelligence to newspapers.” If he was foredoomed in his quest for justice, as so much of the conventional wisdom had it, then his last stand should also have had a certain glory.

Instead, as the recriminations began, the collegiality of the profession asserted itself. ‘The Eddies did a sterling job,” raved Illinois

lawyer Stephen Komie. “With lesser means and lesser lawyers, he’d be in the slammer right now.” Counsellor Komie is looking at it as a professional assignment: this guy was obviously guilty. Given that, his defence team did an amazing job getting a potential century of incarceration down to a third thereof. Which seems reasonable enough—if you turn the bedrock principle of English law on its head and start with a presumption of guilt.

Most outside lawyers following the case agreed with Komie: the Eddies did terrific given the raw material. Most inside lawyers— both counsel for Black’s co-defendants and the federal prosecutors in the U.S. Attorney’s office—thought the Eddies blew it: Greenspan was a cold fish who alienated the crowd, and, while the stumbly-bumbly folksy-jokesy Genson connected with the jury, his client remained an unknown, beached in the centre of this grim burlesque of a case like a stranded whale in a municipal paddling pool.

A week before the verdict, counsel for one of the other defendants chanced to run into Barbara Amiel and offered this cheery conversational opener: “You know what your team’s big mistake was?” Barbara, reasonably enough, wasn’t in the mood for hearing what the “big mistake” was, it being too late to correct it. But they told her anyway: her hubby’s lawyers had failed to give the jury a sense of Conrad as a human being. Which seems a sad oversight: if Conrad Black is anything, he’s all too human. M