Читать книгу Tilted - Steven Skurka - Страница 9

On the eve of his criminal trial, Conrad Black was staring down a crushing blow to the media empire he had devoted forty years of his life to build. Beginning with the purchase of a series of small Canadian newspapers in the 1960s, Black, along with his cohort, David Radler, grew his empire steadily, eventually becoming the world’s third-largest media publisher. Influential newspapers such as The Daily Telegraph, Chicago Sun-Times, and The Jerusalem Post were part of the stable of newspapers under Black’s control.

Conrad Black’s gradual rise to the pinnacle was contrasted by a relatively swift downfall, culminating in a series of felony convictions in a federal courtroom in Chicago for mail fraud and obstruction of justice. Lord Black was transported from the austere surroundings of a Palm Beach mansion to a Florida federal prison, Coleman FCI, with the ignominious title of inmate number 18330-424. The enigmatic entrepreneur’s collapse was set into motion during the late 1990s when Hollinger International, a publicly traded Delaware company with Black as its chairman and controlling shareholder, began selling its pool of American community newspapers to eliminate a portion of the corporation’s mounting debt. This was accompanied by the sale to CanWest, a Canadian media company, of some of Hollinger’s major Canadian assets, including The National Post, for $3.2 billion.

In May of 2003, at an annual meeting, alarming concerns were raised about particular details of these commercial transactions by a group of shareholders of Hollinger International led by the New York investment firm, Tweedy Brown. A feature of their complaint related to the claim that several million dollars from the sales proceeds had been improperly funnelled to Conrad Black, his associates, and to affiliate companies under Black’s control (Ravelston and Hollinger Inc.) in the guise of fictitious non-compete payments. Under the terms of a legitimate non-competition agreement (which was common in the publishing industry), part of the purchase price in a transaction would be allocated in return for the vendor’s contracted promise not to compete with the new owner.

By the end of 2003, Conrad Black had resigned as Hollinger’s chief executive and David Radler resigned as the president and chief operating officer of the company. The Hollinger board of directors established a special committee to investigate the allegation made in the complaint by the disgruntled shareholders. The Special Committee Report was prepared by Richard Breeden, a former chairman of the U.S. Securities and Exchange Commission, and appointed by George H.W. Bush. The voluminous Breeden Report was issued in August of 2004 and concluded in scathing language that Conrad Black had led a “corporate kleptocracy” at Hollinger that aggressively looted the company of hundreds of millions of dollars that included over $200 million of unauthorized management payments. Black was accused of orchestrating together with his associates “an entity in which ethical corruption was a defining characteristic of the leadership team.” Hollinger was tapped as a piggy bank for the Blacks. The non-compete payments totalling more than $90 million were cited in the report as a potent device for funnelling a portion of the sales proceeds into the hands of Conrad Black and other officers of the company. The report also highlighted a lengthy list of personal expenses improperly charged to the company including a “Happy Birthday Barbara” dinner party in Manhattan for Black’s wife, Barbara Amiel, that featured Beluga caviar and lobster ceviche. The lavish party was noted to be less expensive than Dennis Kozlowski’s party for his wife in Sardinia that was charged in part to Tyco.

The audit committee of Hollinger was blamed for its inadequate scrutiny of Black and Radler’s financial scheming. The three member committee chaired by a former governor of Illinois and U.S. Attorney was found to have operated deferentially as a rubber stamp and was characterized in the report by an “inexplicable and nearly complete lack of initiative, diligence, or independent thought.”

In the period following the release of the Breeden Report, American prosecutors closely followed the script of the play written for them by counsel for the Special Committee and pursued a criminal investigation of Conrad Black’s misconduct at the helm of Hollinger. It was an ominous sign for Black when the indictment of David Radler was announced. As part of his plea deal, Radler had agreed to co-operate with the U.S. prosecutors in their continuing investigation of Black; he also agreed to accept a twenty-nine month prison sentence that could be served, with an approved transfer, in a penitentiary in the province of British Columbia where Radler resided. David Radler loomed at the upcoming trial as the government’s undisputed star witness and the ultimate insider who could expose Black’s complicity in a fraudulent scheme.

In November 2005, approximately one month after Radler’s guilty plea was entered in court, Patrick Fitzgerald, the high profile U.S. attorney for the Northern District of Illinois supervising the case, held a press conference in Chicago to report the indictment of Conrad Black on eight federal charges of mail and wire fraud relating to his participation in an alleged scheme to illegally divert funds away from the shareholders of Hollinger. Other senior executives of the company, Jack Boultbee and Peter Atkinson, along with the in-house counsel for the company, Mark Kipnis, were also indicted. A superseding indictment with additional charges, including racketeering and obstruction of justice, was brought later against Conrad Black. The obstruction count resulted from Black being videotaped removing thirteen boxes of documents from the Toronto office of a holding company of Hollinger at a time when a grand jury investigation and criminal proceeding were brewing against him and the Securities and Exchange Commission (SEC) had made an imminent production request for documents to Black’s counsel in the U.S.[1] There had been five previous document production requests from the SEC that resulted in Black turning over 112,000 pages.[2]

Conrad Black maintained a defiant position about his list of criminal charges as he publicly proclaimed his unwavering belief in his innocence. His legal team was in place for the upcoming courtroom battle and consisted of two legal luminaries in Canada and the U.S.: Eddie Greenspan and Ed Genson. Teams of attorneys from Chicago and New York represented Black’s co-defendants. Patrick Fitzgerald assembled a relatively youthful and energetic prosecution team for the case. The trial judge overseeing the case was Amy St. Eve, who had been appointed to the federal bench by George W. Bush. In March of 2007, the jury trial of Conrad Black began in downtown Chicago in an overflowing courtroom. It would mark the beginning of a legal struggle that would occupy over four years before reaching its surprising ending. The trials of Conrad Black were set to commence.

The Just Us Department

My grandparents arrived at Halifax Harbour in 1930 with the prescient sense that Canada might be a marginally more inviting place to raise a family than Poland. It was only a scarce few years before Adolf Hitler’s dutiful soldiers invaded the hapless eastern European country and brutally savaged its people. When my father was born on Oxford Street in Toronto several years later, my grandparents were so enamoured with the relative comfort of their new surroundings that they decided to name him after the ship that had safely carried them across the Atlantic. It was called The Frederick. My father remained eternally grateful that the ship’s builders hadn’t christened it The Matilda.

My dad became a chartered accountant, and I was taught from an early age that life is a balance sheet, with good deeds and corresponding rewards. I inherited my dad’s somewhat infuriating habit of obsessively planning each day with meticulous detail. I have daily planners, weekly planners, and even monthly planners. I purchase them from a stationery store in the chic Yorkville area of Toronto that imports them especially from Italy. I am therefore able to celebrate Giorno del Canada (Canada Day) and expand my vocabulary simultaneously. I never have the misfortune of missing the birthday of a good friend or relative. The dates are neatly sorted in a designated area of one of my planners in a section titled “date da ricordare” (dates to remember).

It was therefore with some pleasure that I stumbled fortuitously on a store that devoted itself exclusively to selling products that are associated with the name “Fred.” The unique boutique was located on one of the charming main streets in Charleston, South Carolina. I was there attending a legal conference sponsored by the NACDL.

The affable saleswoman showed me the various cups, T-shirts, and hats all adorned with the name “Fred.” I pondered my father’s gleeful reaction several months hence at receiving such personalized gifts and ultimately purchased them all. I was feeling quite satisfied as I contemplated checking off the birthday purchase in my bright orange calendar. I then noticed that the saleslady’s face had suddenly turned rather stern.

“What’s that?” she asked as she pointed to my identification tag for the conference. I replied that I was a criminal lawyer visiting Charleston for a conference at a nearby hotel. I was promptly told that I was going straight to hell for my flawed career choice. There would apparently be no detour to Baskin-Robbins for one last cup of pistachio almond ice cream. I must confess that I never inquired if the jarring comment was made playfully or in earnest. The tone certainly conveyed that she was perfectly serious, but in the true spirit of my profession, I was prepared to give her the benefit of the doubt. I left the store, however, in haste and downcast with the gained knowledge that as a criminal defence lawyer I was destined to spend eternity charting my way through a maze of smouldering flames.

I was reminded of my hellish fate each time I set out on my regular trips between the cities of Toronto and Chicago during the protracted proceedings of the Conrad Black trial. At O’Hare Airport outside Chicago, there are a series of moving sidewalks that over the course of several minutes would take me from Area B to Area C, where the gate for Air Canada flights was situated. The moving sidewalks were surrounded on top by multicoloured lights that looked like they had been designed by a couple of ambitious Grade 7 students for their middle school’s science fair. My travel mates on the moving sidewalks were a group of numb, expressionless strangers. The only sound that echoed in the corridor was the intermittent blare of a recording by an official with the Department of Homeland Security warning travellers of the current colour-coded state of terror alert at the airport.[3]

I had a recurring nightmare that I was trapped forever on a moving sidewalk that would never reach its ultimate destination. I would be a moving sidewalk castaway. This must have been precisely what the nice saleswoman in the Fred store had contemplated when she foretold my assignment to hell.

The Conrad Black defence team had their own version of hell. Prior to the trial, they booked a series of rooms at the historic Palmer House Hotel near the courthouse. There was no work room available and they spent sleepless nights listening to the clanking trains pass through the Loop. The beleaguered group fortunately experienced a renaissance when they moved their quarters to a hotel of that name.

In actual fact, I was quite looking forward to covering the Conrad Black trial. There have been other great Canadian trials to rival it, but the case certainly stood as one of the most significant in the country’s history. In typical Canadian fashion, it had a distinctly American flavour. Conrad Black was indicted in the State of Illinois and his trial unfolded in a Chicago courtroom. I had my media credentials with a rather sickly green card that bore a dark, shadowy photograph that made me appear to be one of Al Capone’s henchmen. Only someone genuinely affiliated with the case would dare to show that ID to gain access to the courtroom.

The trial had riveted people in the streets of Canada and England, but in America it had registered only a faint, distant blip on the radar screen. A search of Conrad Black on the CNN website revealed far more hits for the All Blacks rugby club in New Zealand.

I am somewhat uncertain of the reason that Chicago was chosen for the site of the trial. It seems to be linked to the Chicago Sun-Times building, owned at the time by Hollinger International and where David Radler was stationed and oversaw the company’s media empire. A case could certainly have been made for Conrad Black to be prosecuted in a Canadian courtroom. The head office of Hollinger International’s parent company, Hollinger Inc., was located in the austere surroundings of 10 Toronto Street in downtown Toronto, built originally in the middle of the nineteenth century as a post office. The premises were a most auspicious location for a mail fraud case.

Three of the four defendants, Conrad Black, Jack Boultbee, and Peter Atkinson, worked in the Toronto Street office. The proceeds of the various contentious non-compete payments were wired to the senior executives through a Canadian bank. Indeed, Hollinger Inc., a company largely controlled by Conrad Black and his media cohort, David Radler, was the recipient of a portion of the non-compete payments as well. Finally, 10 Toronto Street is destined to become a valued stop on future bus tours of Canada’s largest city. It is the spot where Conrad Black was notoriously caught on videotape loading thirteen boxes into a limousine, in apparent defiance of the SEC’s request for production and an Ontario court order not to move them. The obstruct justice charge was tied to that Candid Camera moment.

Indeed, two senior prosecutors assigned to the Public Prosecution Service of Canada, Rob Goldstein and Rick Visca, attended three days of the Conrad Black trial to monitor the proceedings. I was familiar with both of them as colleagues and worthy adversaries in their former positions with the Department of Justice. I fortuitously caught sight of them one evening during the cross-examination of David Radler. They were gracious enough about being spotted; they preferred to remain incognito during their stay.

“I didn’t see you in court today,” I stated.

“That’s because we were watching from the overflow courtroom,” Rob replied.

Apparently Goldstein had called Jeffrey Cramer prior to attending the trial and asked for a small favour. He had heard that it was crowded in the courtroom and wondered if a couple of seats could be set aside for the two Canadian prosecutors. They weren’t sure when they would be coming to Chicago.

Cramer’s response startled Goldstein. In a fairly brief phone call, he was advised in no uncertain terms that he would receive no favours from Conrad Black’s prosecutors. Cramer was clearly upset at the lack of co-operation extended by the Canadian government to the American prosecutors. I had heard from one senior Canadian prosecutor that the reason Conrad Black was even charged with obstruct justice was related to the frustration the American prosecutors felt about the perceived indifference of Canadian officials to pursuing Conrad Black. As it was explained to me, the prevailing attitude was “Screw you, Canadian government — if you guys can’t enforce your own laws, then we’re going to do it for you.”

Goldstein and Visca were left to their own devices to acquire courtroom seats. It was duly noted by them that there was a series of empty seats in the government section. They watched a portion of Eddie Greenspan’s cross-examination of David Radler from a large video screen in a second courtroom on the seventeenth floor reserved for the overflow of spectators.

Will Conrad Black ever be prosecuted in Canada? My personal view is that the only realistic avenue is the tax evasion route. That would place Canada in the unusual position of extraditing a man desperate to acquire a Canadian passport. Of course David Radler’s fragrant agreement with the U.S. Attorney’s Office couldn’t cover any Canadian prosecution. The prospect therefore remains that one day Conrad Black and David Radler will be reunited in a Canadian courtroom.

Mr. Black Goes to Washington

Proceedings at Sidebar:

Mr. Sussman: Your Honor, at this point, Mr. Greenspan has called the witness a liar. It was not a question. He just called him a liar to the jury. I think he has been over this line of questioning. At this point now he is commenting on counsel’s objections directly to counsel; and, I think, we are far afield from the question and answer that should be — that, in my view, is appropriate for cross-examination. I know your Honor’s the one that makes that decision. I object to this way of conducting cross-examination. I think it is hostile and is argumentative and is inappropriate.

The Court: Mr. Greenspan? …

Mr. Greenspan: Mr. Genson, my counsel.

Mr. Genson: Your Honor, basically, the man said, “I reviewed it.” I told Mr. Greenspan that he had said he had reviewed it. Then he said, “I hadn’t reviewed it.” Then he said Mr. Greenspan was unclear when he used the word “review” one time, but evidently not that unclear when he used it a second time. And he is inquiring as to which of these statements is a lie.

Mr. Greenspan: He spent, your Honor — unless you care to rule, he spent — an hour on Thursday making sure that I couldn’t ask a question because he said, “I can’t — I haven’t read it. I haven’t read it. I haven’t read it.” Quite frankly, I would have put it to him on Thursday if anybody at our table had remembered what happened Wednesday. But it was that night, when we went back and reviewed it and found that. I think it’s, in my respectful submission, very important.

The Court: I think the line of questioning about the apparent inconsistency certainly is appropriate. The problem is you are crossing over from asking him questions about did he say this, what did he mean, to saying, “Which one are you lying about?” That crosses over, under our system, into argument. You are free to argue that to the jury —

Mr. Greenspan: I see.

The Court: — at the end of the case. But when you say to him, “Which one are you lying about,” or —

Mr. Greenspan: You can’t do that?

The Court: — “You are a liar, aren’t you?” That crosses over into argument. Similar to the question you asked about, “Isn’t this going to lead the jury to believe that you’re lying?” You are crossing over into the jury’s province there.

Mr. Greenspan: I must tell you only —

Mr. Genson: Is it possible to say, “Which one is true and which one isn’t”? I don’t see why —

Mr. Greenspan: I must say this to you: that, in Britain, the great cross-examiners can’t wait to get to where I just got —

The Court: And —

Mr. Greenspan: — only to find out the rule is you can’t do it.

The Court: You can certainly argue that. I think it is fair to say, “Which one is accurate?” But you are — you have crossed over the line.

Mr. Greenspan: I apologize.

The Court: There is no need to apologize. I am just —

Mr. Greenspan: I am going to work very hard —

The Court: — indicating.

Mr. Greenspan: — to change the rule.

(Laughter.)

Whereas Barbara Amiel described her husband’s defence team as “the help,” for Conrad Black they were the military commanders with whom he entrusted his fate. He once sent Ed Genson a congratulatory note during the trial that read, “That reminded me of the salvo of the Bismarck.” In another case, he sent other words of support to Genson: “That was very strong. Barbara agreed.”

For all of his public outbursts and bombastic nature, in many ways Conrad Black was the ideal client. He was gracious and polite and always respectful in discussions with his lawyers. Only once during the trial, during the testimony of a member of the audit committee, Richard Burt, did Black genuinely panic. Even after the verdict, when Eddie Greenspan was vilified in many quarters, Black resolutely stood behind his chosen general.

Greenspan maintained that the source for the scorching article that appeared in Maclean’s magazine after the trial about his abject performance and “disastrous defence” was Barbara Amiel and not his client. He telephoned his good friend George Jonas to complain that Amiel, who was Jonas’s ex-wife, had only succeeded in increasing her husband’s sentence. Greenspan was confident that the trial judge would read the article and be particularly perturbed by the disparaging comments made about Ed Genson. Genson was by far the judge’s favourite attorney in the case.

How did Conrad Black come to retain “two fat Jewish guys,” as Greenspan amusingly described the Black legal team?

Greenspan first became involved in Black’s tangled legal affairs in November of 2003 as an independent legal advisor. Black had signed a restructuring agreement that essentially removed control of Hollinger International from himself. Greenspan would later refer to this “baffling act” as the single moment that unravelled Conrad Black. He was uncertain if Black had obtained any legal counsel before taking such drastic action.

Black continued to conduct the company’s affairs as if there had been no transfer of control. He maintained that he had been lied to and the agreement was therefore of no force and effect. He had retained a Washington law firm, Sullivan Cromwell, partly on the basis that John Foster Dulles was associated with the firm. Greenspan had flown into Washington before and was aware that one of the airports was named Dulles Airport. “Don’t they name airports after dead people?” he asked Black.

The pressing legal question confronting Black at the time was a subpoena to testify at the SEC. Black’s counsel at Sullivan Cromwell was urging him to testify in Chicago. Greenspan spent a couple of days with Black listening to his version of the facts. While heartened by what he heard, Greenspan was adamant that there could be no advantage for Black in testifying. A testy exchange then ensued with Black’s Washington lawyer.

“I’ve never had a client refuse to testify before the SEC,” he advised Greenspan.

“Well I’ve never agreed to ever have my client testify,” was the brusque reply from Greenspan. Black eventually asserted his Fifth Amendment right to remain silent before the SEC.

Conrad Black’s civil actions continued in the early months of 2004. One of them was disastrous. In Delaware, the sale of Hollinger International assets to Barclays Bank in England was halted in Commercial Court. Black’s credibility was shredded by the presiding judge, Leo Strine. Black’s confidence in Sullivan Cromwell was gone and he was ready to bring on new counsel to represent him. By this time a grand jury had been established to proceed with a criminal indictment against Black. Criminal charges were a virtual certainty.

Black had watched the Iran Contra hearings on television and was particularly enthralled with Oliver North’s lawyer, Brendan Sullivan. On the strength of that sole appearance, Black selected him as his new attorney. Sullivan agreed to take on Black’s file.

On March 19, 2004, Conrad Black met Sullivan in Palm Beach, Florida, to retain him to handle his civil and criminal matters. Greenspan was linked to the meeting by speaker phone. During the discussion, Sullivan told Black that he never had a client go to jail. Greenspan later commented that either Sullivan was lying or he was not a criminal lawyer. However, if Sullivan’s claim was true, Greenspan promised to send him all of his clients.

Sullivan’s firm was hired; the Palm Beach meeting was the only time that the two men ever met. Greenspan spoke to him a few times, and all of Black’s contact occurred with lawyers at the firm who made few critical decisions without first checking with Brendan Sullivan.

Greenspan had considerable misgivings about one law firm representing Black on both his civil and criminal matters. During discovery, it would be impossible for the law firm to block disclosure of a document connected to the criminal case. Greenspan told Black that having a civil firm acting on both ends of his case was “nuts.”

A competition began among law firms for the millions of dollars at stake in Conrad Black’s civil file. They wooed him with highly sophisticated demos and PowerPoint presentations. Black attended each of the presentations on his own and regularly reported back to Greenspan. Greenspan was personally contacted by a number of prominent attorneys from the white-collar bar in the U.S. actively seeking the case. The winner of the law firm pageant was the Washington firm of Baker Botts. Greenspan was impressed with Bill Jefres in particular, who came highly recommended by Brendan Sullivan. Jefres would eventually act as co-counsel for Scooter Libby at his high-profile trial in Washington. Sullivan continued to act as Black’s criminal lawyer while Greenspan remained in the background as a legal advisor.

Greenspan was teaching for one week at Hebrew University in Jerusalem when a fees dispute arose between Black and Sullivan’s firm. Although Black had paid the firm millions, Sullivan asked for a further $25 million to represent him in his criminal matter. Greenspan told Black on the phone that “this is a fuck-off fee” and that Sullivan wanted to be removed from the file. There was some further discussion about one of Sullivan’s partners, Greg Craig, taking over the file for a significantly lower fee, but ultimately it was agreed that new criminal counsel would be sought.

Greenspan had already concluded that a criminal case was inevitable. Radler had pulled out of the joint defence agreement and was turning to become a prosecution witness. Certainly the disaster in Delaware had been closely watched by Radler’s Chicago attorney, Anton Valukas, a former United States attorney. The trial for Conrad Black would not be in New York as many suspected but rather in Chicago, the headquarters of Hollinger International. Chicago was an idiosyncratic town with its own character and personality. Black entrusted Greenspan with the task of choosing his Chicago counsel. “You pick the team,” he instructed him.

For Greenspan there was only one viable choice. The attorney with the best reputation in the city, Dan Webb, was out of the running because he was a law partner of Governor Thompson’s. Thompson was the chair of the audit committee at Hollinger International and would be a key witness in the case. That left Ed Genson, whom Greenspan knew because his daughter Juliana had worked for Genson for several years. The two men had dinner together every time Greenspan was in Chicago. Genson talked a great deal about himself at these dinners but Eddie found him to be colourful and amusing.

Genson was part of the Chicago fabric as much as Studs Terkel or Wrigley Field. In Genson’s own words, “everyone tries to hire me in Chicago.” In fact, Ravelston, the management company once controlled by Black and Radler, had earlier approached Genson to take on their criminal case.[4] Greenspan suggested he decline the case but made it clear that he wasn’t promising anything.

Greenspan met with Genson to discuss the parameters of his involvement in the case. Greenspan wanted to handle the case in Chicago and he would be the undisputed “boss.” If the two men differed, Greenspan would command the deciding vote. The second rule was that Greenspan would cross-examine Radler and the entire audit committee. Greenspan added Henry Kissinger, a Hollinger board member, to the list as well — the opportunity to cross-examine a former secretary of state was too alluring to pass up. Genson readily agreed to the terms. “Can we work together?” Greenspan asked Genson. “Absolutely,” replied Genson. “We’ll make a wonderful team. You’re the boss, Eddie.”

The two men shook hands. All that remained was for the client to meet Genson and approve. Genson’s office was located in the Monadnock Building in Chicago’s Loop. He kept a railroad spotlight from 1933 in the reception area. When the U.S. Attorney’s Office had been across the road he had occasionally shone the spotlight directly at them as a prank.

Genson’s introduction to Conrad Black reminded Greenspan of a scene straight out of Bonfire of the Vanities. Black walked in with his nose in the air. He was the “Master of the Universe [who] took a masculine pride in the notion that he could handle all sides of life.” The thought must have passed through Black’s aristocratic mind at that instant that he could have any big-firm guys he desired and was now settling on a character straight out of the world of the beleaguered defendant in Tom Wolfe’s classic novel: “How could he let any decision affecting his life be made by this sort of person in this sort of atmosphere? He had called in sick — that lamest, weakest, most sniveling of life’s small lies — to Pierce & Pierce; for this itching slum of the legal world.”[5]

Black accepted Greenspan’s recommendation for his co-counsel, and the key players in the defence team were in place. Genson never conducted any of the pre-trial motions in the case. That task was delegated to the “law guy” in the office, Marc Martin. Martin was regarded as having a keen legal mind and reminded Greenspan of his former partner, Marc Rosenberg (now a justice of the Ontario Court of Appeal).

Eddie Greenspan was the first person to let Conrad Black know that he would be charged criminally. Greenspan described it as a winnable case, but Black was “mad as hell.” The indictment against Black was announced on November 17, 2005, and was accompanied by a detailed press release from the U.S. Department of Justice. Robert Grant, from the Chicago office of the FBI, summarized the case in the release in the following fashion: “The frauds in this indictment were blatant and pervasive: they extended from back rooms to the boardroom, and from Park Avenue to the South Pacific. Our job is to protect investors from Wall Street to LaSalle Street and in other global financial markets.”

The indictment was bulky, which is a typical feature of indictments in high-profile fraud cases in America. As one attorney noted, it serves the purpose of telling the story from the prosecutor’s point of view. The press receives the public document with all of the intended sound bites. That represents half the battle for the government. The other prominent feature of the indictment was that it contained vague charges like mail fraud where the actual criminal component was less than clear.[6]

As Greenspan observed, the case came down on Black “like a ton of bricks.” He put on a brave face in public but he was shocked at the severity and number of the charges. The racketeering charge seemed particularly mean-spirited to him and his attorneys. Greenspan and Genson both wondered what the Racketeer Influenced and Corrupt Organizations Act (RICO) had to do with non-competition agreements.

The prosecutors had the blueprint for their case in the investigative report prepared by Richard Breeden, the former head of the SEC who led the special committee that was appointed to look into the non-compete payments. They relied heavily on it. Their target was Lord Black of Crossharbour, a newspaper mogul connected to the Chicago Sun-Times who was much disliked in some circles. Both Genson and Greenspan worried that that their client would become the prosecutors’ ticket to a major law firm and the case would evolve into a crusade.

Bail was carefully negotiated before Conrad Black surrendered to the Chicago authorities. Greenspan left from Toronto with Black and Juliana on a private plane the morning of the surrender. Prior to the trip, Greenspan insisted that Black meet with him to discuss the consequences of surrendering to the U.S. authorities. There was never any thought of Black fighting extradition. When Greenspan told him about his possible sentence if he was convicted, Black stared at him as if he were crazy.

When they arrived at the federal courthouse in Chicago, they were greeted at the probation office by Genson and Martin. Black was never handcuffed, but in accordance with standard procedure, he provided a urine sample and a couple sets of fingerprints.

When they entered Judge St. Eve’s courtroom, the mood was serious and the bail hearing was all business. Martin presented Greenspan’s application to act as counsel in a Chicago courtroom and the application was granted with little fanfare. Greenspan was surprised, as he had believed it might be a contentious issue. Greenspan would later come to joke that he would never even fly over Chicago again because of the ordeal of the trial. But for now, he still loved the city.

A Picture Is Worth a Thousand Convictions

Over the course of a legal career that has spanned almost forty years, Eddie Greenspan has formed a symbiotic relationship with the media. It has resulted in his achieving a degree of fame in Canada that is likely unmatched in the country’s history. Just as Wayne Gretzky and Sidney Crosby have attained superstar status in hockey, Greenspan has reached the same lofty heights in the legal sphere.

The Conrad Black trial would bring Eddie Greenspan to the American stage for the first time. As Genson noted, Greenspan really wanted to do this trial. He revered legendary trial lawyers from America such as Edward Bennett Williams and Clarence Darrow. Indeed, Greenspan modelled the beginning of his closing address on Williams’s famed closing statement in his successful defence of Governor John Connally.

A certain group of attorneys in Chicago watched with disbelief as Greenspan was featured in the media as the Black trial approached. They happened to be Conrad Black’s prosecutors. They had devoted months to researching the case, poring over the Breeden Report and conducting multiple interviews with witnesses in both Canada and the United States. They emphatically resented all of the ink that some Canadian lawyer was attracting.

Their deep resentment towards Greenspan would bubble to the surface repeatedly during the trial and eventually would develop into a seeming obsession for some of them.

“Where’s the great Eddie Greenspan? Where’s Canada’s Clarence Darrow? Huh!” Eric Sussman would rhetorically ask a Canadian journalist. Jeffrey Cramer declared at one point during the trial that “if Greenspan is the best lawyer in Canada, you guys are screwed.”

A decision was made about one week before jury selection to take a staged photograph of the four prosecutors and distribute it broadly to various news organizations. The photograph was prominently featured in newspapers in both Chicago and Toronto. All four prosecutors posed like actors in Law & Order or the more dated Mod Squad. Eric Sussman’s arms were firmly crossed while Julie Ruder’s hair appeared to be blowing with the assistance of a fan.

Mark Kipnis picked up his local Chicago paper and was devastated. “Who do these people think they are?” he wondered. “Don’t they know that I’m a husband, a father, a real person?”

This team photo of Black’s prosecutors generated a lot of discussion among the lawyers in the city of Chicago. As far as anyone could recall, no prosecutors had ever posed for a publicity photo before a trial. Even some members of their own U.S. Attorney’s Office began to poke fun at the four prosecutors.

When the trial concluded, Eddie Greenspan was invited to address the American College of Trial Lawyers on the subject of the Black trial. When he placed the prosecutors’ photo on an overhead, it was greeted with laughter by the elite group of trial lawyers. Greenspan shared his view that the photo depicted the prosecutors posing as crime fighters. If any prosecutor in Canada attempted a similar stunt, he would immediately be reported to the Law Society for conduct unbecoming a barrister and solicitor.

Black “I”

He had a tendency to look down at us, like he couldn’t believe people so beneath him were responsible for his freedom. He didn’t portray any warmth, any emotions at all. It looked like he thought the whole trial was a big waste of his time.[7]

— juror Jean Kelly speaking about Conrad Black

It is very refreshing to have a system in America that allows jurors to speak freely after a trial and admit to drawing impermissible inferences that weren’t based on a shred of evidence called. Jean Kelly further commented that other jurors felt that because Conrad Black was arrogant, “we have to nail him on something.”[8]

While it is true that Black’s mouth sometimes acted like an uncapped fire hydrant outside the courtroom, with his words gushing freely from the spout, his conduct in front of the jury betrayed none of his imperious traits (although Greenspan did have to remind him on occasion not to sit with his arms crossed). Any notion that he believed the case was an excessive waste of his precious time was drawn from thin air and exposes the grave danger of jurors relying on their subjective impressions of courtroom demeanour.

Black’s greatest failing in the case was a profound lack of insight. His co-defendants accordingly were considered to be ingrates and hypocrites for daring to complain about his strident public outbursts. While his lawyers desperately tried to keep the Breeden Report out of the case, Black wanted it in. The jury should know about Breeden’s hollow accusations of a corporate kleptocracy, he told them. When he persisted in pointing out to Genson that his successors had taken over Hollinger International and ruined it (the stock had plummeted from $20 a share to $4), Genson flatly asked him what that had to do with fraud. Black also wanted to advance a position that all of the buyers in the various American community newspaper deals genuinely wanted non-competition payments with Hollinger Inc. Greenspan viewed this as an overly risky and unnecessary strategy.

Black’s lack of insight did not, however, extend to the decision not to testify. He knew that he had fared poorly in his mock cross-examination with Earl Cherniak, a leading Toronto litigator brought to Chicago to interrogate him in the privacy of a law office. Greenspan had earlier cross-examined Black for only a few minutes on his comment to the press about the prosecutors being a bunch of Nazis. It was pointed out in Greenspan’s questioning that all four of them were in fact Jewish. Black fully supported his own lawyers’ recommendation that he not take the witness stand. He also believed that the government’s case was flimsy and remained optimistic of winning the trial. At the conclusion of Greenspan’s cross-examination of Radler, Black leaned over and whispered to him at the counsel table, “Thank you. Now I won’t have to testify.”

It must be said that not once during Greenspan’s lengthy cross-examination of Radler did Black’s confidence in him waver. Greenspan had started this most important cross-examination of his life believing that Radler had made it easy for him, but Radler proved to be more resilient and elusive than he could possibly have anticipated. By the end of the first couple of days of cross-examination, even a member of his own team began to turn on him. Greenspan had been telegraphing his planned method of cross-examination for months in the media, the team member pointed out, and what else could he expect the result would be. In other words, Radler could anticipate Greenspan’s strategy, a fact that foretold an impending disaster inside the courtroom.

It would have been sorely tempting to follow the onslaught of criticism from the media, but Black resisted. He had chosen Greenspan and would stand by him to the finish. By this point in the case, Greenspan felt under siege from a number of quarters. Some of the media reports, including one from a journalist in his hometown of Toronto, were disparaging and scathing. He complained that during the trial not one of his co-counsel had lifted a finger to help him and left him “to twist in the wind.” Nothing changed during his cross-examination of Radler to alter that perception.

There were occasional group meetings of all of the lawyers on the case in a large boardroom at Safer’s law firm. Greenspan didn’t even bother to attend all of them because he thought it was the enemy camp. He was aware that both Kipnis and Atkinson had been approached by the prosecutor with deals that were still on the table during the trial. (Boultbee had been offered a deal weeks prior to the trial with the stipulation that his sentence could not be less than Radler’s, at twenty-nine months.) Greenspan was concerned that some of the other defendants’ attorneys “didn’t know what being a defence lawyer means” and believed that they still harboured the perspective of prosecutors. It wasn’t the task of the defence to prove anything but only to raise a reasonable doubt. Patrick Tuite, Jack Boultbee’s affable Chicago attorney, considered it unfortunate that Greenspan had to learn the U.S. system while he was defending the case. Ron Safer’s view was somewhat harsher. He would never presume that he could try a case in a Canadian courtroom.

The unfortunate conflict reached its zenith with the testimony of the central witness in the case, David Radler. Safer, who had serious misgivings about Greenspan’s approach to the witness, wanted to rely on Radler’s telling the truth in his statement to the Breeden committee (which he renounced at trial) when he denied that there was any fraudulent scheme. It was captured in this portion of his cross-examination of Radler:

Q: You discussed earlier a letter that your committee — your lawyer — wrote to the special committee. The letter addresses all of the non-competes that you testified about, except for CanWest, American Trucker, CNHI [Community Newspaper Holdings Inc.] I and II, Forum and Paxton, Horizon and APC. The letter states that it was your understanding and belief that International’s audit committee and board of directors approved each of these transactions that was the subject of the inquiry and the letter says that, doesn’t it?

A: Yes.

Q: With regard to non-competition payments, I refer you to the section about non-compete payments to the individuals. You address all $15.6 million?

A: Yes.

Q: And you state that you understood and believed that those payments were fair and reasonable, that full disclosure was made to the audit committee and the board of directors, and that the audit committee and the board of directors approved those payments?

A: That’s right.

For Greenspan, the case was very simple. Black never approached a single purchaser in the sale of the American community newspapers. He never negotiated a deal or had a single conversation with any of the buyers about the sale of the papers. David Radler was a liar and the members of the audit committee were all liars. A fraudulent scheme was singularly devised and put into operation by Radler. Radler performed the operatic parts of tenor, baritone, and soprano on his own and only used Mark Kipnis as his alto dupe.

By the time final argument arrived, a confused jury had three competing theories from the defence:

1 There was no crime committed by anyone and all of the $60-million proceeds of the non-competition agreements received by the senior executives and the parent company, Hollinger Inc., were legitimately obtained.

2 Conrad Black and the other senior executives were duped by David Radler, who kept them in the dark about an illicit scheme that he orchestrated to insert them into a variety of non-competition agreements.

3 What happened at Hollinger International wasn’t a theft by Conrad Black but rather a theft from Conrad Black. There was a crime but Black was the victim.

The problem with the first theory was the perplexing question of the reasons behind David Radler’s guilty plea. The jury was expressly instructed not to take the plea into account during their deliberations, but it must have confounded them. The jury was never informed that Radler faced up to twenty years under the sentencing guidelines if he risked going to trial and lost everything. The figure was calculated by a leading American sentencing expert, Jeffrey Steinbeck, retained by the defence. It takes a fluid legal mind and an abacus to decipher the sentencing guidelines, and Steinbeck was familiar with the various downward and upward adjustments. He prepared a memo that was available for the attorneys to use during Radler’s cross-examination. Radler eventually worked out a deal for twenty-nine months. Would the dramatic difference in punishment entice an innocent man to forego a trial? You bet it would. According to Murray Richman, a veteran defence attorney from the Bronx, “Even innocent people often aren’t willing to risk fifteen or twenty years or more in jail by going to trial. Not when they can get it down to one to four if they plead.”[9]

Only in America would someone seek immunity when there is no legitimate basis for being charged. In the event you might attribute this proposition to the wild imagination of a Canadian lawyer feasting on Havana cigars, let me point out that it actually happened in the Black trial. Paul Healy, Black’s former subordinate, received immunity from the prosecutors. Why? Ed Genson, who cross-examined Healy, couldn’t explain it but happily pounced on the unexpected gift to undermine Healy’s motives.

Angela Way, Mark Kipnis’s assistant and a peripheral witness at the trial, was scared to death of the prosecutors. She had been interviewed by them several times before she testified. She wouldn’t even look at her former boss on the witness stand during her examination.

The members of the audit committee were accused by the defence of remembering only what they chose to remember and disregarding the rest. Why would they do that? Ron Safer answered this puzzling question in his closing: “Because of embarrassment, because of liability. You know they were threatened by the SEC. They were investigated by the SEC. They got together and they put together a story. Ambassador Burt told you he was beginning to have a fear of being embarrassed as the controversy grew. Mrs. Kravis [another audit committee member] said the SEC enforcement proceedings were embarrassing.”

There was a broad consensus among observers of the trial that the worst witness was Black’s former executive assistant, Joan Maida. The decision to call Maida was foisted on the Black legal team by the client and his wife. By this point in the trial, Barbara Amiel was at the end of her rope with the poor collective judgment exercised by her husband’s lawyers. It didn’t matter that Genson’s law partner, Terry Gillespie, along with Jane Kelly,[10] had interviewed Maida in Toronto and warned of the danger to the case of calling her as a defence witness. Black absolutely insisted that she be called.

Conrad Black’s most critical lack of insight was demonstrated by his unrelenting strident public comments during the trial. At one point he approached me, stating, “I understand that you think that loose lips sink ships.” He didn’t need my answer to see the folly of his ways. He had repeatedly ignored the admonitions of several of his own lawyers to quell his outbursts.

The judge demonstrated incredible patience with Black’s conduct during the trial. She really wanted Black’s legal fate to be decided on the evidence and not on extraneous reasons. Her respect and compassion was most evident when the jury returned with its verdict. She understood instantly that the prosecution had succeeded with only morsels of its case. Eddie Greenspan, over time, shifted his harsh view of Judge Amy St. Eve. He ultimately believed that she was a fair judge and that any failings he had accused her of were really failings of the system that she was part of. “We’ve all thought she was a good person,” he concluded.

My Kind of Town

“You win the case in the opening, Eddie.”

Eddie Greenspan listened intently as Ed Genson implored him to open to the jury with some flourish, and he instantly made a decision about the case.

“Then you’re doing the opening statement,” he informed his Chicago-based co-counsel.

Greenspan’s experience with opening statements in Canada was dramatically different. Beyond saying hello to the jury and reminding them of the standard of proof in the case, there was little utility to an opening. Not a single thing that you say actually lingers in the jurors’ minds. I must admit that I generally shared Greenspan’s cynical view. The idea that a jury might recall what a lawyer had told them months ago seemed far-fetched.

Both Greenspan and I forgot one essential factor in the Black trial: the jurors were permitted to take copious notes. One of them knew shorthand, which likely meant that the jurors had the equivalent of a transcript of the opening statements of all of the attorneys.

The prosecution proceeded first, and the very first thing that Jeffrey Cramer told the jurors was this: “You’re sitting in a room with four men who stole $60 million. Four men that betrayed the trust of thousands of public shareholders. Four men who decided amongst themselves that their six- and seven-figure salaries were simply not enough.”

In plain speak, the prosecutor was describing the case as a grand-scale theft by a group of four rich and greedy men. Genson understood the prosecutor’s tactics. “He wanted to dumb down the case for the jury,” he told me.

Was Cramer’s tactic effective? Consider that he focused his sights on only three allegedly fraudulent transactions in his opening statement: Forum, Paxton, and APC.

The jury returned guilty verdicts against all of the defendants on only three transactions: Forum, Paxton, and APC.

It was during the days leading up to Genson’s opening that Greenspan realized that there was a significant clash of styles that he wasn’t certain could be overcome. Genson refused to show him the draft of his opening statement. There was a very good reason for this: Genson didn’t have one. His practice was to jot down a few major points and then proceed to deliver some extemporaneous thoughts in front of the jury. He felt that it created a more natural, free-flowing rapport with the jury. Greenspan, by contrast, was meticulous in his preparation and had detailed scripted notes for every aspect of the trial. Like any accomplished advocate, he could react to surprises and adjust his questions accordingly.

Genson attributed the difference to their particular experiences in their own countries. If the Black trial had proceeded in Canada, there would have been an extensive preliminary hearing where the key witnesses would have been challenged in cross-examination under oath. The notion of preliminary hearings has almost vanished in the U.S. In Canada there would have been a body of discovery material to test the case and the attorneys at trial would not have to guess what the witness would say. Genson’s own experience in obtaining statements from the grand jury a month or two before trial meant burying himself in preparation every day, including working on weekends and late into the night.

“You can be a trial lawyer until you’re ninety in Canada,” Genson observed with some degree of envy. I didn’t want to disappoint the Chicago attorney by sharing with him that I wasn’t familiar with a single trial lawyer in Canada over the age of seventy-five.

With the benefit of a preliminary hearing, for example, Ron Safer wouldn’t have been surprised by David Radler’s testimony. He was fully expecting Radler to get into the witness stand and claim that he had lied to the FBI when he distanced Kipnis’s $150,000 bonus from the fraudulent scheme. Hadn’t Jeffrey Cramer implied that was the case in his opening? Until the very moment the prosecution closed its case, Safer believed that the prosecutors had some mysterious evidence in their treasure chest to buttress Cramer’s damaging claim.

Greenspan also understood that he would have to abandon one of his key strengths at the trial. He was a very funny man with a sharp wit and the exquisite timing of a great comedian. He once introduced Jackie Mason at a charity benefit in Toronto and Mason complained onstage that Greenspan was funnier than he was. It was the truth. Eddie Greenspan’s speeches before lawyers and judges were regularly laced with warm and endearing humour. He had the ability to make people laugh from the centre of their belly and he exploited this skill to great advantage during his criminal trials.

No Canadian jury would ever get the impression that Greenspan was a rude and arrogant man.

This was Genson’s town, however, and he would be the kibitzer in the courtroom. There could only be room for one of them. Greenspan knew they had to avoid any chance of their lawyer tandem coming across as Abbott and Costello. This sacrifice was an unfortunate setback for Conrad Black.