Black’s fate is now in the hands of Bashful, Sleepy and Bubbly
DOWN TO THE 12
Black’s fate is now in the hands of Bashful, Sleepy and Bubbly
Shortly before the defence rested, Conrad Black’s legal team introduced a death threat he’d received in 1999 from a gentleman called “the Prophet of God,” pledging that he was going to “harvest” the media baron: “Money. Power. It all comes to nothing.” Etc.
Black’s lead attorney Ed Genson read out the threatening email and ended: “Signed, Eric Sussman”—i.e., the chief prosecutor. Everyone laughed. Even the jury laughed, which they don’t often, and certainly not. in full open-throated hilarity as they did here. Naturally, Mr. Sussman objected, but an indulgent Judge St. Eve preferred to regard it, as she put it, as an “oops” on Mr. Genson’s part.
On Tuesday, in the final address by any lawyer in this trial, Mr. Sussman returned to the subject: “Ladies and gentlemen, I’m sure all of you remember that email,” he said, sounding a little snippy, “because Mr. Genson made a joke about it at my expense and everyone laughed about it really hard” It’s easy to dismiss the cocky boy prosecutor as touchy and thin-skinned, and it’s also fun, because he rarely fails to rise to the bait. But Mr. Sussman wasn’t merely standing on the
thin ice of his dignity, he was making a point. “The laughter from that table,” he said solemnly, jabbing his finger at Black, Genson, Edward Greenspan, Q.C., and the phalanx of other lawyers, “told you just how seriously they took that death threat.”
Oh, I don’t know. Regardless of how serious “the Prophet of God” was, Eric Sussman is deadly serious: he’s aiming to send Conrad Black to prison for a century, and yet they’re still laughing their socks off at him. As the great English actor Sir Donald Wolfit is supposed to have said on his deathbed, “Dying is easy. Comedy is hard.” That’s certainly the case if Mr. Sussman’s wan closing address is anything to go by. The most striking rhetorical effect was his pneumatic tic: “But you know what? You know what?”
But you know what? Prosecutor Sussman is determined to have the last laugh. If you’re in the courthouse cafeteria with Conrad and you ask him to survey the great sweep of the past four years, he usually opts for military metaphors and starts explaining how he needed to retreat strategically to a “defensible perimeter”: by this stage of the tale, he’s usually moving condiments around the table in battle formations. But, if this case can be painted in military colours at all, it’s more like one of those grubby Afghan wars where the local warlord discovers his various tribal allies have all been offered a better deal. The United States government determined to cut off any possible route of escape, and so all those loyal pals—the governors and ambas-
sadors and former secretaries of this and that—and the lifelong business associates and junior executives were all signed up and turned their guns the other way.
So today the “defensible perimeter” rests on 12 of the unlikeliest conscripts. Monday was a glorious summer’s day in Chicago, and at the lunch recess I found myself sitting on some low-rise wall in the piazza behind the courthouse as the jurors drifted back for another three-hour slog and lingered outside a few more minutes for a quiet smoke or a little bit of banter. On the press benches, we know them all now: the middle-aged guy with the earring, the black lady who sleeps all the time, the generously apportioned blond who pops bubble gum, the shy sweet girl who seems to have begun modelling her coiffure on Lord Black’s ever-present daughter Alana... After three months, real friendships have formed: in the sunshine, they gossiped and chattered about everything except Conrad Black. And then they went back inside for a few final hours of closing arguments, and then the days (weeks?) of deliberations.
No one knows how it’s going to go. When Eric flashes one of his trademark smirks at the jury, two or three of the guys smirk back. That would seem to be a bad sign. The sleepers are usually a good sign: if they’re bored, they blame it on the side that initiated the boredom—the government. As for those who mull over whether the cessation of note-taking is good or bad, well, who knows? None of us do until the foreman stands up to deliver the verdict.
How did it come to this? How did a Canadian accountant, a Canadian lawyer and a British peer wind up having the rest of their lives determined by Bashful, Sleepy, Bubbly and the other members of a generally attentive and sober but extremely foreign jury? An American reader wrote to me the other day as follows:
“Even when the defendant is innocent, the jury wants an explanation. They want to know, ‘How did he get here? If he’s innocent, why would somebody think he’s guilty?’
“And we know the answer to that—a powermad, office-abusing attorney. I would say that to the jury.”
Well, yes. Patrick Fitzgerald is a power-mad, office-abusing attorney, and, yes, what’s going on in this courtroom is a criminalization of business analogous to the criminalization of politics that was at the heart of Fitzgerald’s last big case, against Scooter Libby. If you don’t like the Bush-Cheney war machine, toss ’em out on election day. If you don’t like Conrad Black, vote him off the board or clobber him at shareholder meetings. But turning political decisions and business judgments into criminal acts strikes at two of the pillars
of civilized society. And, instead of boasting of their 95 per cent conviction rate (or 97, or 98, or whatever it’s up to by now), the U.S. Attorney’s office ought to realize that—like Kim Jong Il’s 99 per cent victory margin in the last North Korean election—that figure is something any self-respecting “justice” system should be appalled by: in the Northern District of Illinois, as in Pyongyang, it testifies mainly to the muscle the government can apply.
But, with respect to my correspondent, in this case the power-crazed U.S. attorney isn’t the whole story. It’s a poor reflection on the other side that not until the closing statement by counsel for the lowliest defendant— Hollinger’s veep in Chicago, Mark Kipnis—did anything like an alternative narrative to the government’s tale of “schemes” and “conspiracies” by “sophisticated” “criminals” finally emerge.
In his final pitch to the jury, Mr. Sussman attempted to explain the executives’ “fiduciary duty”: “ ‘Honest services’ means putting shareholders’ interests No. 1,” he said, in a somewhat reductive definition. After all, even if you argue (as the government does) that Black’s legal controlling interest of Hollinger International is somehow illegitimate, the remaining shareholders aren’t a homogenous bloc. At the turn of the century, International’s investors were divided into two camps—those who supported the Black regime and were willing to stick with it for the long term, and those (like Conrad’s bête noire Tweedy Browne) who wanted to break up the company, sell off the assets and divide the proceeds. The first group of shareholders were broadly content with the “non-compete” payments and the company jet and the Park Avenue apartment: they regarded it as a necessary cost of keeping the only executives who knew what to do with the newspapers. The second group saw the non-competes et al. as a weapon they could use to their own
advantage. Which “shareholders’ interest” was No. 1?
At this point, as I understand it from my own conversations with the principals, ambassador Richard Burt, a member of the “Tensecond approvals? We deliver!” audit committee, understood that Tweedy Browne’s attempts to implicate Hollinger’s A-list independent directors might have potential consequences for his own business interests. At a critical meeting, he slipped Paul Healy, head of investor relations and Conrad’s disaffected gay groupie, a note across the table saying: “Call Richard Breeden.” Healy did. Breeden is a “corporate governance” guy. In fact, he’s America’s first corporate governance billionaire, with a corporate-governance hedge fund registered in the Cayman Islands. This may strike some as paradoxical: only in America! Or, to be legalistic, only in the British West Indies! But the point is: the
minute Breeden was called in, it was destined to become a tale of executive ne’er-dowells—because, like a formulaic romance queen, that’s the only story he knows how to write. And once it became clear that that was the plot, the celebrity directors fell in line with it.
“They pointed the finger,” said defence counsel Ron Safer, at Black, at Radier, for things they knew about and approved—“and that, ladies and gentlemen, is frankly unforgivable.” Government prosecutor Julie Ruder, in her own closing argument, referred to ‘the Great Divide”—between the “schemers,” on the one side, and, on the other, the shareholders, directors, auditors, lawyers and
other dupes and victims. But the real Great Divide is between the government’s four designated fall guys and everyone else at Hollinger—the directors, auditors, lawyers, etc., who approved everything done by the quartet of defendants.
Take Can West. As Ron Safer pointed out, the audit committee’s Marie-Josée Kravis asked David Radler why he didn’t just sign the non-compete but not take money for it. ‘And Radler says, ‘No, I want the money.’ And they say, ‘Okay. Here it is.’... Why in the world would you ‘hide’ anything from this audit committee?” wondered Safer.
There was no crime. There never was. It was all approved, multiple times. So why did David Radler plead guilty? Because of one long-ago transaction—the sale of American Trucker magazine in 1998. Radler transferred $2 million of the proceeds from Hollinger International in Chicago to Hollinger Inc. in Toronto.
I doubt whether even that was a “scheme” with any “intent”: just one of those things. But, when the government came a-calling, Radler realized, in Safer’s words, that he had “no way out” on American Trucker— and that alone could put him away for upwards of five years. So he took the government’s deal and pleaded guilty to a crime he didn’t commit to avoid a greater sentence for one he did.
There were plenty of conspiracies at Hollinger: Radler with his protégé Todd Vogt, spurned groupie Paul Healy with his new patron Richard Breeden, “special committee” chair Gordon Paris with the suddenly forgetful audit committee. Just about the only guy who wasn’t on the inside of any conspiracy when he needed to be was Conrad Black.
It’s with the jury now. If Ron Safer’s impassioned, plain-spoken defence of Mark Kipnis gets his client off, he’ll be a legend in Chicago. If it gets all four men off, they’ll be teaching it in law school. And, if the entire quartet go down, they’ll be wondering why such an obviously stitched-up pantomime horse of a case was allowed to give Eric Sussman the last laugh. M
IF HIS DEFENCE GETS ALL FOUR OFF, THEY’LL BE TEACHING IT IN LAW SCHOOL
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