It is tempting for prosecutors to unfairly exploit the leverage and power placed in their hands. Ron Safer made reference to its frightening influence in the Black trial in his closing address:
Pressure from the government is a truly awesome thing … You saw the response that several witnesses in this case had to that enormous pressure that the government can apply. [For] some witnesses it was dramatic … For David Radler, at a certain point he started confessing to everything the government asked him about, even though he had vehemently and vigorously denied these same exact points time and time and time again.
In Canada the trial of Conrad Black would have been a bench or judge alone trial. Eddie Greenspan suggested that the decision in those circumstances would have been a “slam dunk.” He believed that Judge St. Eve would have acquitted the defendants of all the charges they faced.
There are several reasons that the case was well suited to be tried by a judge sitting alone. Firstly, none of the defendants testified, and there is always a genuine concern that a jury will interpret that as a conspiracy of silence.
Secondly, the premise of the defence was that the vast millions of dollars of non-competition payments the defendants received were lawful and approved by the audit committee, but ultimately the defence conceded that no direct economic benefit to the shareholders resulted. That is not an attractive argument to make to a jury.
The final reason that a judge should have heard the trial was the incredible zeitgeist that lingered from the high-profile corporate fraud trials in America such as Enron, Tyco, and WorldCom. A new crime wave shook the public’s faith in corporate America and Wall Street, and business leaders became the new fodder for the prosecution mill as attitudes towards corporate governance hardened. The criminal charge of racketeering was being applied without discretion against corporate defendants.
A bench trial in America, however, requires the government’s consent. I was advised that in a high-profile case like the Black trial, consent would never be given because it would improve the defendant’s chances of winning.
Does anyone care that the American system is slanted in favour of the prosecution? Politicians boost the vast powers invested in American prosecutors. Judges are elected on get-tough-on-crime platforms exploiting a dire fear among Americans that the nation ever be considered soft on crime.[33] Prisoners are inhibited from using DNA evidence to support wrongful convictions while voters continue to reward prosecutors who are well known for locking up innocent people.[34] Congressional hearings are ordered for pressing issues like the use of steroids by professional athletes but never for the nation’s plague of miscarriages of justice.
Segments of the media openly favour the side of the prosecutor and vilify the presumption of innocence.[35] The most striking example is Nancy Grace[36] with her popular nightly show on HLN, an affiliate of CNN. She has been appropriately been described as a former prosecutor “turned broadcast judge-and-jury.”
“Working with a contingent of experts who have all the independence of a crew of trained seals, Ms. Grace races toward judgment, heedlessly ignoring nuance and evidence on her way to finding guilt.”[37]
Nancy Grace, however, isn’t the media’s sole offender. During the Michael Jackson trial, Tim Rutten, a respected columnist with the Los Angeles Times, commented on the secession by an entire segment of the news media from mainstream American journalism. He cited most of the commentator/personalities on FOX News (with the notable exception of Greta Van Susteren), the prime-time segment of CNN Headline News, and Court TV. He added the following: “These operations no longer feel constrained by even the minimal requirements of fairness, balance or dispassion required to practice American-style journalism. Instead, they operate as an apologetic cheering section for the prosecution.”[38]
It was Conrad Black’s naïve assumption that he could successfully navigate the turbulent stream of American justice and emerge unscathed with his liberty intact. He will have the experience of three years in a Florida federal prison to reflect on his grand miscalculation. David Radler, who pleaded guilty and in Black’s words “was exposed as a double-dealing cheat and liar and perjurer,” served about nine months of his twenty-nine month prison sentence before he was paroled in Canada.
Conrad Black’s case, however, did help to expose the systemic failings of a severely flawed U.S. justice system. Despite the obstacles, only fragments of the government’s original case against him and his three co-defendants remained. Ron Safer described the final result as a huge defeat for the government given where the case started. Black was left in the end with a single fraud conviction and an additional conviction for obstruction of justice for a crime committed wholly under Canadian jurisdiction. He overcame 99 percent of the total fraud alleged in the indictment. His share of payment in the proven fraud amounted to of $285,000. Black overcame a tilted prosecution that included the testimony of a watchtower audit committee that portrayed itself as the cast of MTV’s Jersey Shore.
Eddie Greenspan described “everyone talking in terms of forty years” if Conrad Black was convicted of every charge he faced. He certainly would have died in prison. Greenspan wryly observed that “we now know that there were no witches in Salem and there was no corporate kleptocracy.”
Barbara Amiel being attended to by court officials at Conrad Black’s resentencing hearing after reacting to the judge’s pronouncement of her husband’s sentence.
Sketch by Cheryl Cook
For Conrad Black, the final chapter in his case has not been written. As Jacob Frenkel concluded, Black will not be content with such an outcome. “He will go to every president in his lifetime until he gets a pardon.”
Titan on Trial
The Case Against Conrad Black
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