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
