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.
March 14–19, 2007
Jury selection begins in Chicago for the trial of four former Hollinger executives — CEO Conrad Black, executive vice-president Peter Atkinson, former CFO Jack Boultbee, and general counsel Mark Kipnis.
David Radler reaches a $28.4 -million (all figures U.S.) settlement with Sun-Times Media Group (as Hollinger International is now known). Defence attorneys argue jurors may have been tainted by the news. Judge Amy St. Eve agrees to question jurors individually about their knowledge of the settlements.
Jury of My Fears
The Canadian jury is selected with the utmost courtesy and respect for the privacy of its members. Questions are rarely permitted during jury selection and the slightest hint of a personal question is immediately frowned upon by the presiding judge.[11] It is not a jury of twelve angry men but rather twelve unknown men (and women) that is ultimately chosen. I discussed the rather anonymous method by which Canadian juries are chosen with a noted criminal defence lawyer from Los Angeles, David Elden. He surprised me with his considered view that probing jury questioning invariably benefits the prosecution. Liberals proudly display their civil liberties credentials, whereas law-and-order conservatives are far more reticent to expose their pronounced views.
I recall a case in which I was defending a young man charged with criminal negligence