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The Prosecution: May 9

From Tilted: The Trial of Conrad Black by Steven Skurka
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The Prosecution: May 9

In Tilted: The Trial of Conrad Black, veteran attorney and journalist Steven Skurka brings the trial of media titan Conrad Black to life and argues that it was "tilted" from the outset by an American justice system that stacks the odds against the defendant, and a prosecution that played the "class card" in an attempt to demonize Black for his wealth and excesses. Skurka also shows how Black attempted to tilt the trial in his own favour by using his wealth to mount a powerful defence.

Pointing to [David] Radler's past lies to Hollinger committees, prosecutors and FBI agents, [Edward] Greenspan attempts to paint Radler as a serial liar motivated by his plea bargain to give testimony favourable to the prosecution. Greenspan refers to Radler's arranged transfer to a minimum-security prison near his Vancouver home, and Canada's more lenient parole regulations, as a "sweetheart deal."


. . .

Tilted: The trial of Conrad Black

Let Me Call You Sweetheart

Well, the real F.D.R. finally revealed himself in court today. Not the subject of Conrad Black's biography, of course. Frank David Radler walked into the courtroom as the David who fought bravely against a Goliath for several days. By the end of the court session, he emerged as an emperor with no clothes. Radler's shining credibility was tarnished by Eddie Greenspan today, and the damage to the prosecution's case may be irreversible.

Greenspan will be the focal point of blame if Black loses this trial. He assumed that risk when he agreed to handle the case in an American courtroom. The trial judge is extremely tolerant of Greenspan's misadventures with the local rules of evidence and procedure two months into the trial. The jury may be less forgiving.

Greenspan took a different approach today after a restless weekend and it reaped immediate dividends. The most critical point that Greenspan established was the absence of a single fax, e-mail, or memo that supported Radler's contention that Black initiated the bogus non-compete scheme. This distinguishes the Black case from the other high-profile American corporate fraud cases in which documentary corroboration abounded. The judge will be required at the trial's conclusion to offer a cautionary charge to the jury about accepting Radler's evidence absent any supporting evidence. While more diluted than the equivalent Vetrovec warning in Canada1 (named after the Supreme Court of Canada decision that created the legal principle), it nonetheless will likely have a critical bearing on the jury's decision in the case.

Greenspan crystallized for the jury, for the first time in the trial, the theory of the defence. This was a major failing in the defence's opening addresses. After accusing Radler of making the best deal of his life with the prosecution, Greenspan continued: "For that deal — that incredible sweetheart deal — you had to give the U.S. government what they wanted, when no crime was committed by anyone but you."

According to the defence theory, the rogue and scoundrel in the dishonest non-competition scheme for the U.S. community newspaper deals is David Radler. He arguably conned his co-defendants, the Hollinger International shareholders, and the prosecutors who made his artificially sweet deal, and, most significantly, is now attempting to dupe the jury in the case.

Radler made a serious misstep today. Rather than admit that his relaxed sentence was potentially abbreviated, he attempted instead to portray the lustrous shine on his deal with the prosecutors as a bit rusty. He seriously maintained in answer to a question put by Greenspan that he was uninformed that his twenty-nine-month prison sentence, to be served in Canada, could be shortened with parole considerations by almost two years.

He feigned ignorance that the sentence could be reduced to six months served in a Canadian prison. Greenspan immediately shot back, "Until this moment you didn’t know that? I think I’m going to send you a bill."

The notion that Radler wasn't tuned in to the precise sentence he is facing is complete balderdash. It is implausible that he wouldn't be overly curious about his own parole eligibility, and it would be highly unprofessional for his acknowledged stellar Vancouver lawyers not to have spelled it out in detail. It is a mystery why it is not explicitly set out in Rader's written plea agreement with the prosecutors. It is also an immutable assumption that every prison inmate knows two facts as he is about to commence a prison sentence: his visiting privileges and his earliest release date.

The comfortable and defiant Radler vanished from the courtroom today, replaced by an irritated, nervous man who realized that he was beginning to look foolish with some of his answers. When Greenspan snapped at him that it was easy for him to lie, Radler responded, "I don’t believe I have to answer that." Judge Amy St. Eve dropped the ball by not insisting that Radler answer the question. A few of her rulings were also questionable. When Gus Newman received a damaging and non-responsive answer from Radler, he swung around and pointed at the prosecution's table: "Do you feel that this gratuitous remark," he asked Radler, "strengthens your position with the people at this table?"

Eric Sussman made an objection with no name that was sustained. The question posed was perfectly appropriate and the ruling forestalled a full inquiry of Radler's fishy deal. However, today marked the best day for Judge St. Eve in the trial. Her decisions were otherwise evenhanded and she firmly chastised Sussman outside the jury's presence for leaving an improper impression with the jury that Greenspan was not operating in good faith. She was visibly angry at the lead prosecutor for allowing matters in the courtroom to descend into the personal arena. She wasn't prepared to deal with it in a secretive sidebar, either. It was about time that she interceded in this fashion. Every mocking objection by Sussman to a Greenspan question has been made with his voice raised and his head nodding in apparent disbelief.

Greenspan is not without fault, as he occasionally baits his adversary in a boisterous tone. It has become an unfortunate and nasty sideshow to the trial. It was, however, a red-faced Sussman who stormed out of the courtroom moments after the judge's admonition.

Radler has one final day on the stand and the prosecution will then move to its final phase. The case is marching to its conclusion. In a few weeks it will be clear if Conrad Black will be ushered out of court in handcuffs or leave with his freedom intact. There will undoubtedly be a few more twists and turns before the final chapter is written. It will be a dramatic conclusion to a fascinating case.



Slip-Sliding Away

I find myself continuing to struggle with a number of differences in procedure between the Canadian and American justice systems. For example, it is fairly common for an attorney at this trial to begin a question and then suddenly change his mind in mid-sentence and declare it to be "withdrawn." The air is sprinkled with some magical potion and the question is asked again as if nothing else had ever been spoken.

A more jarring difference is the use of objections made by opposing counsel during statements to the jury. In Canada that would occur about as frequently as a winter without a raging snowstorn. However, in the Black trial, both defence and prosecution objected with impunity. In one instance, Ed Genson successfully objected to the prosecutor's opening as "personalizing the jury." I wondered how an objection would be framed for misleading the jury. The following passage was included in the opening statement of Jeffrey Cramer:

You're going to hear from David Radler. I told you Radler pled guilty. He's accepted responsibility for his fraud and he's going to jail. And David Radler will give you an inside look at how they went about stealing $60 million; how he and Black and Atkinson and Boultbee and Kipnis, how they all stole $60 million. Radler will tell you how it worked. And he'll give you a view into it. He'll tell you what they did — what memos they produced. And David Radler, you’ll have a chance to judge him; he will be supported by the other witnesses who testify; and, he will be supported by documents.

David Radler will be supported by documents? Am I at the same trial as these prosecutors? If there is one matter that is abundantly clear from Radler's lengthy testimony, it is that there is not one single document, whether it be a fax, memo, e-mail, or letter, that supported the word of the star prosecution witness. Did such documents simply disappear after Mr. Cramer gave his opening? It seems that the prosecutor perhaps misspoke. There will be no objection by the defence for poor form. I strongly suspect, however, that the jury will be reminded in final argument by the defence that the only document supporting David Radler is his plea agreement with the prosecutors. He has already used his lifeline.


"The Prosecution: May 9" is an excerpt from Tilted: The Trial of Conrad Black by Steven Skurka. Toronto: Dundurn Press, 2008. Reprinted with permission.

Steven Surka

Steven Skurka is the legal analyst for CTV News, and covered the trial for the network. He is also a law partner with Skurka Spina Cugliari LLP in Toronto, and a certified specialist in criminal litigation. His blog, < http://www.thecrimesheet.com/>The Crime Sheet, enjoys tremendous popularity and is quoted by Maclean’s on a regular basis.


Notes

  1. Vetrovec v. The Queen, [1982] 1 S.R.C. 811.
The views expressed in the magazine are those held by the authors and do not necessarily reflect the views of Open Book: Toronto.

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