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