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