in the courtroom. I began to suspect that he understood that Conrad Black’s defence team was so anxious to discredit the case against their client that it would be virtually impossible for them to resist the urge to take the safer course and refrain from asking the first witness a single question. Paris would serve as the perfect foil for this artful strategy.
Stripped of his ability to refer to the incendiary Breeden Report (although he did manage to sneak in a mention in front of the jury), Paris was like a snarling dog straining against its leash to get at its prey. It should have been readily apparent to the defence that Black’s successor at the helm of Hollinger International offered little valuable evidence to the prosecutor in his examination.
As Eddie Greenspan quickly learned in cross-examination, Gordon Paris was a dangerous witness. The most memorable features of his evidence came during the re-examination by lead prosecutor Eric Sussman, after the door was inadvertently left wide open by Greenspan. Authorized employee benefits, Paris noted, didn’t extend to corporate perks such as birthday parties, New York apartments, or free access to the company aircraft. All three perks were the subject of separate charges in the indictment against Conrad Black.
The acclaimed Canadian lawyer struggled and looked badly out of place in the city where Clarence Darrow tried most of his cases. As the trial judge sustained the steady stream of objections from the prosecutors, Greenspan had the look of a wobbly boxer wincing from a succession of jabs to his abdomen. Greenspan’s confusion escalated to the point that on occasion he wasn’t certain if he had won or lost an objection. There was a series of long and awkward pauses at the counsel table as Greenspan was educated about some elementary rules of American criminal procedure.
For example, Greenspan attempted to ask Paris about a regulatory SEC filing that he had submitted ten months late. His American co-counsel had written out a sample of acceptable questions he could ask to demonstrate that Paris had lied to the SEC and that the filing was improper. Greenspan instead chose to ask Paris, “You did your best and made an honest mistake?” It was a theme that Greenspan hoped would resonate with the jury in considering Black’s conduct. However, the prosecution’s ensuing objection was quickly sustained and Greenspan was forced to justify his approach to Judge St. Eve in a voir dire outside the jury’s presence. Greenspan thought it was “nuts” that before he could present evidence to show the jury that Paris had made an honest mistake he first had to portray the witness as dishonest to the judge.[1]
At the lunch break, I overheard one of Greenspan’s co-counsel remark that he seemed unaccustomed to the American courtroom style. The start of the trial wasn’t the time and place, however, for a rudimentary lesson. I wasn’t prepared to count Eddie out, though. I doubted that Black’s legendary Canadian counsel would permit himself to be publicly shamed a second time with another dismal courtroom performance. And without some noticeable improvement by Greenspan, Conrad Black could begin to furnish his prison cell.
A positive sign for Black was that the jury listened intently to the evidence presented and took notes. Greenspan managed a few smiles in the jury box with his brand of self-deprecating humour, but he clearly had not yet developed any rapport with the jurors. It was still early in the ball game and these were only warm-up pitches. The lineup of star witnesses, including David Radler and members of the audit committee, would mark Greenspan’s true test with the jury.
In order to acquire one of the precious few seats in the courtroom reserved for the international media, I was required to line up at seven o’clock in the morning. The journalists covering the trial were generally very approachable and even helpful. There were a few grating comments that I chose not to respond to. One reporter blamed Eddie Greenspan for not pursuing a settlement for his client (generously assuming that Conrad Black would heed anyone’s advice).
In one discussion that I overheard in line, a journalist wondered why Black hadn’t repaid the questionable compensation he had received for the non-compete agreements. The notion advanced was that Black could possibly have avoided his current legal predicament with that simple gesture. Another journalist nearby scoffed at the suggestion that Black would ever pursue such a sensible course of action. “That would be like asking why Hitler didn’t bring back the six million Jews,” he said. I was beginning to get the impression that Conrad Black was reviled by a lot of people. His detractors didn’t attempt to disguise their hostility, either. But the only opinions that mattered to Black were those of the jurors, and he was indeed fortunate to be perceived by them as a stranger in their midst.
I have resisted the temptation thus far to lapse into the “Montreal bagel syndrome.” For the rare reader unacquainted with the malady, allow me to explain. It represents the rigid position that whatever one experiences outside one’s own city or town is always inferior to the home product. For example, anyone who has lived in Montreal, Quebec, will invariably inform you in a dismissive tone that the bagels in that cosmopolitan city are much better than the comparable fluffy and inedible bagels in Toronto, Vancouver, or Calgary. I suppose that would include David Radler, whose roots can be traced back to Montreal. With my legal analyst’s cap firmly in place, I have been a careful observer of the proceedings in the Black trial and on balance have been favourably impressed. By all accounts, Conrad Black is receiving a fair trial.
There are only four men among the group of jurors and alternates, and so it is remotely possible that Conrad Black’s legal destiny will be determined by twelve women. At least two-thirds of the jury will be female. The prosecution should certainly reflect on the wisdom of seeking to introduce several thousand files containing predominantly email exchanges between Lord Black and his wife, Barbara Amiel. Whatever the content of the myriad emails, their presence will create an image of spousal devotion, love, and romance for the jury.
I found the entire issue surrounding the admissibility of the Amiel emails perplexing. In Canada there would never be any question that they would remain sacrosanct and protected by marital privilege. While munching on a Montreal bagel, I raised the matter with a professor at the DePaul University College of Law in Chicago. Apparently, any communication between spouses that is outside the course of the marriage is not the subject of privilege. I never appreciated that marriage could so readily be divided into categories of business and pleasure. For example, what would an American court rule with regards to the following hypothetical example of an email exchange?
Dearest Conrad,
I love you dearly. May I please buy some Cartier earrings with the money you received from your latest non-compete payment? I want to wear them on the plane ride to Bora Bora ~ lol.
Babs
The emails of Conrad Black took centre stage at the end of the first week of trial. “Black’s Private E-mails Go Public at Fraud Trial,” read the headline in the weekend edition of the Globe and Mail. Conrad Black was documented in an April 2003 email delivered to audit committee members Marie-Josée Kravis and Richard Burt reassuring them in his unique bombastic style that he would crush any dissident shareholders: “I will take on the task of hosing down shareholders in need of it as some priority.” In another email, responding to questions about non-competition agreements, Black disparaged his challengers as victims of an “epidemic of shareholder idiocy.”
Are the jurors being swayed by these graphic emails capturing Conrad Black’s descriptive flair? Many of them laughed heartily as Eric Sussman struggled to pronounce the word “calumnies” in one of them. Genson pounced on the opportunity to offer his client’s assistance. That suggestion was greeted with more amusement by the jury.
Unfortunately for the prosecution, the emails were neither calumny nor calamity for Conrad Black. I expect that that the jurors will give very little weight to these pompous emails in their deliberations. The caution flag was raised clearly in Genson’s opening statement: “That proves nothing except that he has an arrogant attitude when he writes memos in the middle of the night.”
Genson’s
