provided by the prosecutor with the anticipated menu for the trial without the enticing details for the recipe of each course. Regardless of whether the meal consisted of oysters or foie gras, the prosecutor’s voice would never rise with crackling excitement. Unappetizing introductions such as “I anticipate the evidence will be” or “I expect the witness will testify that” would be sprinkled throughout the curt summary of the case for the Crown.
I chatted with a journalist covering the trial for the Sydney Morning Herald and found that we shared a common view that Cramer’s opening address was certainly different than anything we had experienced in our respective countries. As he wagged his finger at Conrad Black and his co-defendants, Cramer railed about their looting of the Hollinger International shareholders of $60 million. With faint praise, he referred to the four defendants in the courtroom as some of the most sophisticated men the jury would ever see. Always be wary of the prosecutor who brandishes compliments. Cramer’s point to the jury was plain. The ruse of siphoning extravagant sums of money from the shareholders through various non-competition agreements would have been obvious to these astute businessmen. “It’s simple, it’s simple,” Cramer emphasized as he laid out the nefarious scheme of the four men. Cramer was a disciple of the “KISS principle” that all good trial lawyers understand: “Keep It Simple, Stupid.”
The prosecution appreciated that there was a gaping hole in its case. Every one of the contentious deals involving the non-compete payments to the defendants was profitable to the shareholders. This was not the financial undertow that resulted from the Enron debacle, where billions of dollars were plundered from the company as thousands of jobs and pensions of Enron employees vanished into thin air.
Jeffrey Cramer’s solution was to pull on the jurors’ heartstrings using a different approach. With a raised voice, he drew from the bank of wishful thinking. The two groups of victimized shareholders that he identified were elderly people who had bought Hollinger stock for their retirement and parents who had stocked their children’s college funds with Hollinger shares.
Cramer’s bag of trial tricks in his opening did not rely exclusively on emotional appeal. Plan B depended on frightening them.
“We all know what street crime looks like. A man knocks you down and takes your money. This is what a crime looks like in corporate law … Bank robbers use masks and carry guns. Burglars wear dark clothing and use a crowbar. These four [defendants] wore a suit and a tie.”
Now that it was settled for the jury that Conrad Black had robbed the Hollinger bank in sartorial splendour, it was Edward Genson’s opportunity to respond. He began by challenging the idea presented by the prosecution that none of the buyers of Hollinger International assets wanted a non-competition agreement with Black.
“I want you to remember CanWest,” Genson told the jury. In the colossal $3.2-billion deal between Hollinger International and CanWest, he explained, it was the purchaser who had asked for a non-competition agreement.
Eddie Greenspan listened apprehensively as his co-counsel continued his opening comments. As a thorough lawyer accustomed to meticulous preparation, Greenspan had repeatedly asked to see Genson’s script for the opening. Each of his requests had been rebuffed. Incredibly, he had no more idea of what precise words would be coming out of Genson’s mouth than did his adversaries seated at the prosecution table facing the jurors.
Greenspan’s worst fears were realized as Genson moved quickly on the offensive by stating that there was no theft from the company by Conrad Black. On the contrary, it was the company, Hollinger International, that had been stolen from him. It was a stinging rebuke to Cramer’s opening, but Greenspan worried that Genson had placed an unnecessary and impossible burden on the defence. In the spirit of Conrad Black as victim, the defence was on course to portray the individuals charged with the responsibility for corporate governance at Hollinger International as the true thieves in the night.
Genson touched on a theme in his opening that needed to be addressed directly. “You can’t allow the sparkle of wealth to alter the facts of the case,” he warned the jurors. A glare of wealth or even a blaring inferno might have been more apt descriptions of Conrad Black’s true economic health during the currency of the charges, but Genson’s point was sound. It was ironic that a defendant’s status among the super-rich had marked him as a displaced person before the jury. Whereas indigence might deprive a defendant of the resources to tussle in a courtroom on an even playing field, the trappings of wealth could translate to a badge of impoverished character.
The best of the four opening statements by the defence was reserved for the last. Ron Safer provided the jury with a stirring imitation of a closing address as he sandblasted the central government theory. The audit committee of Hollinger International, chaired by the former governor of Illinois, James Thompson, not only was aware of the non-competition agreements, but also, Safer noted, “approved them again and again and again.”
Safer’s opening sealed a unified front presented by all of the co-defendants. There were no early signs of finger-pointing or cracks in the defence. David Radler emerged as a dominant target. “Would you buy a used car from him?” Ron Safer asked. The implication was clear to the jury: a disreputable man like Radler, who tampers with the odometer and hides the rusty spots, can’t be trusted as a witness.
The headlines in the newspapers predictably captured the prosecution’s sound bite. As a typical example, the Financial Times carried the following banner to its Black trial coverage: “Hollinger chiefs ‘bank robbers in suits’, court told.” The buzz around the courtroom, however, was that after the defence openings concluded, the trial was a true contest. “I would acquit Mark Kipnis now,” one reporter stated only half-jokingly. The jury was engaged and listening. The jurors were ready to focus their spotlights on the evidence.
I was approached by Genson in the hallway at the break. “Are you the guy who called me a curmudgeon on channel 7?” he asked. I admitted that indeed I had used the description in an interview with the local ABC station. “All my friends are calling me about it. I have never been called a curmudgeon before,” he chided me, clearly crestfallen. I could only hope that my unintended slur would be forgotten after the auspicious start to the trial by the defence.
The first witness called to the stand by the prosecution was Gordon Paris. As Mr. Corporate Governance, he had replaced Conrad Black at Hollinger International and played a key role in the Breeden Report that was the precursor to Black’s criminal charges. It was Black who had invited Paris, an investment banker with a prestigious business degree from Wharton, to join the Hollinger International audit committee after questions were raised about some dubious management fees.
Eddie Greenspan assumed the task of cross-examining Gord Paris. It was Paris who had negotiated the $60-million settlement with Radler on the eve of the trial. Greenspan and the rest of the defence had expected the prosecution to open with a few minor witnesses, which would have allowed Greenspan time to get a sense of the unique U.S. style of questioning, but now the first witness in the case was awaiting his cross-examination. A famed Canadian barrister and QC was ready for his first foray in a Chicago courtroom. I suspected that the prosecution might regret calling Paris as their first witness. The only question that would linger after his cross-examination would be this: Is Paris burning?
Lord Blowhard of Crossharbour
The reasons behind the government’s decision to call Gordon Paris as the first witness in the trial were initially a complete mystery to me. Chronologically, his evidence related to the final chapter of the case after the alleged fraudulent scheme had been perpetrated. Perhaps the prosecutors assumed that Judge St. Eve would allow them to introduce the damning Breeden Report that cast Conrad Black in such a villainous light. The judge, however, disappointed them by ruling against that action.
Patrick Fitzgerald, the United States attorney
