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A selection of letters about Mark's Maclean's blog of the Conrad Black trial and his article "The Big Why".
GUILTY OR SNEAKY
In your column, “The Big Why”, you comment about the prosecution's argument as pointed out by Ed Genson "If they have evidence, you're guilty. If they don't have evidence, you're sneaky." It reminded me of the scene from the movie Full Metal Jacket when the helicopter door gunner is shooting at any and all the people he sees on the ground. He's asked how he knows which are the Viet Cong. In a leap of logic that Julie Ruder, Sussman and et al could appreciate he replies, "if they run, they are VC, if they don't run...they are well disciplined VC."
Let's hope the jury sees through such self-serving logic.
Christopher Eyton
Malta
ONLY TWO LOGICAL CONCLUSIONS
Steyn, your blogging has been better than watching proceedings live on TV. I've never seen truer, more frequent and certainly never more interesting blogging than your blogging at this trial. Well done, old chap!
As one who would read all of Conrad's papers while preferring not to invest in his corporate entities (though I admit to being impressed with his prescient sales of declining paper assets), I can only see two logical conclusions that should have been reached: either everyone was innocent, or the audit committee board members should have been sued for dereliction of duty. Signed, approved and filed with the SEC (so available for the world) documents cannot be part of a scheme!
Well, you've convinced me of all that - hopefully the lawyers also convinced the jury. Thanks for the highly, highly entertaining prose along the way.
Michael A. Lyons
Oakville, Ontario
MORE EXCITING THAN THE SOPRANOS
Congratulations on somehow making the seemingly ho-hum trial of a relatively obscure Canadian peer seem more exciting than the Sopranos. I have been reading your posts on the Black trial with a fanaticism that is totally at odds with my normal interests. This is a true test of good writing. Well done.
John F Dowd
GUILTY OF LISTING THEIR HOLDING COMPANY IN THE WRONG PLACE
Thank you for your informative and lively blog on the Black trial.
Prior to the start of the trial I thought Black might be guilty of something and as a long-time share-holder advocate it didn't pain me to think he might get jailed. However, now it is overwhelmingly clear that Black and his colleagues are not guilty of anything except being foolish enough to list their holding company in the US instead of the UK. While the US mainstream press aren't paying much attention there are a lot of corporate leaders who are and Schummer, Bloomberg and Clinton can all expect to see more and more companies doing their IPO's and capital raising outside of the US.
In spite of all this, I think that Black is going to jail, not because he deserves to but because lawyers simply don't "get it"; including his own. I think that you would have been a better advocate for him than his own lawyers because you have a sense that this is all about getting the support of the jury. I think that his lawyers are too caught up in a sense of their own delusions about the nobility of the law and the 'legal system'. Any objective observer can see that this is complete rubbish, the legal system is a disgrace and I suspect that only people that have first hand knowledge really appreciate how fundamentally corrupt the US legal system has become although the UK and most other Western courts aren't far behind.
Black's epitaph may be that "as an innocent man I have nothing to fear from the legal system"; wrong, time to revisit first principles.
The only people with nothing to fear from the US legal system are people who do nothing, contribute nothing and certainly don't try to start anything. The education establishment is currently recasting Horatio Alger stories for the 21st century with people like Fitzgerald, Breeden, or David Suzuki as the leading characters, so the probability is that this situation will get worse, not better.
Anyway, hopefully Black can afford to hire you for the appeal and that you have a chance to demonstrate the impact of decent audio visuals in winning over a 21st century jury, not a 19th century one.
Richard Bassett
HOW CAN THE NON-COMPETES BE FRAUD?
Thanks for the informed coverage of the fraud trial in Chicago. While other Canadian journalists also covered, you were best able to cut to heart of matters. CTV seemed to bring out the most negative aspects insofar as Black was concerned.
My hope is that Black (and the others) are found innocent of all charges, as I suspect the audit committee were coerced by the SEC, despite their high offices and positions in their other lives.
Thanks again for your cogent reporting.
Joseph (Joe) Molnar
Woodstock, Ontario
Post Script:
I can personally relate to the non-compete requirement on the sale of Canadian publications. In the year 2000 I sold my Real Estate Publication ( albeit a mom & pop operation) to the Real Estate Division of Torstar and a non-compete clause was part of the deal - definitely. Torstar insisted. My problem was (in hindsight) that I did not have the financial experts to advise me to get paid a separate figure for that non-compete, which would have been legitimate and (apparently) tax free under Canadian Tax law. I am not whining about it, my point is that if it is a legitimate and open for use, how can it be construed as fraud?
WHY WERE INDIVIDUAL AGREEMENTS NOT DISCUSSED?
Much of the case seems to revolve around the assignment of funds to bonuses or non-compete payments. Much of the prosecution’s case seems to depend on the definition. The difference is more than what’s written on the cheque stub. A non-compete is an agreement and the payment is made in consideration of an undertaking made by the recipient of the funds. This of course is a significant restraint on the part of the party undertaking the condition and hence the compensation. Other than the conditions in the written sales contracts requesting non-compete conditions I have heard no reference to the actual non-compete agreements which surely have been signed by the three defendants on that charge. Maybe I just missed it or the scribes did not choose to report on those out of the hundreds of documents but I find it strange that individual non-compete agreements have not been discussed by either side.
Mac McCallum
Richmond, British Columbia
WHINY BUT USEFUL
An American newspaper with a non-compete clause for its publisher? This is a whiny column by a local reporter, with one useful bit:
http://www.twincities.com/columnists/ci_6236607?nclick_check=1
“Ridder was in court essentially to confirm that he took confidential information with him when he left the Pioneer Press publisher's job to become the publisher at the shrinking Minneapolis paper. Ridder, remember, was installed in St. Paul by his family, which had meaningful roots here the kid has squandered, and then bailed for the Enemy Paper when Knight Ridder was no more. He allegedly ignored his own non-compete clause and took other information that was thought to be sensitive - information that has prompted Star Tribune people to say, basically, ‘Aw, it wasn't that useful to us.’ ''
Ken Muszynski
Tallahassee, Florida
NO-LONGER-BINDING CONTRACTS?
It seems, from your blogging, as if the government's theory is that all the "non-competes" were frauds that the buyers didn't really want and were just a method for Black/Radler to divert money from the shareholders to themselves.
Under this theory, if Black is found guilty, then would that not mean the non-competes were no longer binding contracts and Black could get some payback from those buyers who testified against him by starting up newspapers in their markets from his jail cell?
Roy Koczela
FOLLOW THE MONEY?
Big Fan out here in California.
Just read that the prosecutor admonished the jury to do what Deep Throat did and “follow the money.”
That phrase, of course, never appeared in the book and was invented strictly for the movie.
Colin Flaherty
THEY COULD STILL HAVE COOKED THE BOOKS
While I'm loathe to disagree with you (and have been greatly entertained by your daily evisceration of the bureaucrat lawyers (or lawyering bureaucrats - either is an unspeakable combination), I think you may be understating the possibility of corporate malfeasance. While the government doesn't appear to have articulated the supposed fraud much less proved it, it is conceivable that Black and Co. could have cooked the books to their benefit regardless of whether non-competes are legal and tax-free in Canada.
It is a given that the purchasers of the papers were not forced to pay for non-competes they didn't want or that some if not all of them saw value in them. The key is what the true intrinsic value of the non-competes were and whether Black et al artificially inflated the value to shift funds from the stockholders to themselves, and whether the ultimate value (payout) was value to the buyer or value to those who handled the sale on behalf of stockholders
Conceptually, there were two "prices" for the papers (sorry - I'm an economist) - one with and one without the NC with the difference being the value of the NC. Let's assume everyone wanted some form of non-compete and that the final price with NC was the true total value to the buyer. Whether that price is high, low or otherwise is immaterial, and let's grant that the negotiators acted to get the most money (e.g., didn't take a lower bidder with a higher NC or hold off on a deal because it wasn't self-remunerative enough). Whatever that price, when I cut the check as the buyer, I don't care how you allocate it internally (pay out dividends, buy Tora Bora oops Bora Bora). The issue is whether those doing the allocation were truly representing the NC value or getting a little Tony Soprano "taste" for themselves.
As a simple example, say you go to buy your polar-powered Obama (powered by bears that is - doing jobs petroleum won't do) from Algore Honda and you negotiate a $10,000 price. When you go to close, you see an extra thou for undercoating, local advertising and the Dixie Chicks singing (bravely) in your backseat on weekends. If you pay it, then you're a sucker but there is no fraud to my mind, and if the salesman gets 50% of the add-on and 1% of the rest that's the Veep's business. But if the salesman then goes back and says he negotiated $8,000 for the base and $3,000 for the add-on and bumps up his cut, that's fraud even if the Big Jim, the sales manager signs off on it and it's put up on that secret "sucker" board in the coffee room for all to see. And if Cindy the paperwork girl helps you do to because you're dreamy, she's also guilty whether she gets a proportional cut or just a pinch at the water cooler.
In this case, if the Black Gang negotiated a $1 million price for the Tora Bora Beheader, but inflated the value of the NC to $200k rather than a reasonable $100k that extra $100k comes out of the stockholders' take regardless of whether the $800k they got was good or no. (And if the buyers knowingly conspired in this overvaluation - aren't they parties to the fraud?)
The issue of routing it over Canada is not related to this as it only affects the value to the recipients not the buyers or the stockholders. In fact, if the true value to the buyer is $200k and Black et al said we'll only charge you $175k if you pay us in loonies then that's an IRS issue (and apparently it isn't) not business fraud.
In the end, it seems the key question is whether the money paid for the NCs were reasonably in line what the buyers valued them at, but that apparently has not been the core of the case. I absolutely agree with you that the notion that the government can come in after the fact and not only Monday morning quarterback corporate decisions, but Monday morning referee them as well is a crock. You fight the corporate wars with the Advisory Committee you have and it's tough luck if they're the frauds.
Rex Edwards
McLean, Virginia
DAMNED IF YOU DO, DAMNED IF YOU DON’T
The government's case against Conrad Black seems to be that even though he reported his alleged heist to the audit committee and to the regulatory agencies, that doesn't count because nobody reads that stuff anyway.
The government has a point. We're all inundated with more forms than we can read--you can't so much as open a free e-mail account without being accosted by a disclosure of responsibilities and liabilities. The government, by fostering a climate of minute regulation and extensive litigation, has created this glut of legal documents, which keeps all this information from actually informing anybody.
And now the government is saying to Conrad Black: because our regulations don't really work as intended, we're going to punish you for following them. It would certainly have prosecuted him if he hadn't filed these forms. But it can also impugn him because he has.
There are enough documents in circulation, and enough laws on the books, that the government can always sift through them and assemble something resembling a case. So it can always prosecute someone else for its own failings.
We see something similar in the prospective immigration bill. The government has been extremely ineffective at regulating immigration. So now it's going to demand that private businesses clean up its mess.
Employers are going to be punished if they hire an illegal immigrant. On the other hand, they'd better not deny employment to someone who's contesting his illegal status. On the other hand, they'd better fire him promptly if he eventually is ruled illegal. A cumbersome apparatus is going to be dumped on private citizens to sort out a matter the government should have sorted out itself.
The one thing that's clear is that it isn't the bureaucrats who are going to get fined for failing to uphold the law. If the government can't interpret its own regulations correctly, hey, mistakes happen. If a private citizen can't interpret the regulations correctly, that's a violation.
When someone points out the adverse possibilities of the immigration bill, its defenders say, Oh, no, read the bill, we've got a stipulation for this, and a subsection for that. But this proliferation of stipulations is hardly reassuring, it only certifies that this is another piece of "comprehensive" legislation, like campaign finance reform, that will prove to be a playground for hustlers and a
minefield for honest citizens.
If you can't keep a law within a hundred pages or so, it suggests that you don't have a grip on the problem, or that you're addressing a matter that isn't really suited to regulation.
But that's what the government does--sometimes prompted by the public, sometimes on its own initiative, it takes on issues it can't really handle. And when the inevitable disappointment comes, it goes around looking for scapegoats. Conrad Black is the latest victim.
Michael Kalk
Austin, Texas
WHO KEEPS TABS ON THE TAB-KEEPERS?
Re: who takes care of the caretaker’s daughter, etc; up in Canada, being a nation of accountants, as opposed to the US, who seem to be nation of lawyers, or the Japanese, rapidly being overtaken by the Chinese, who are nations of engineers who produce goods that people really want (I'm an engineer); we should be humming; "Who does the accounting on the accountant while the accountant is doing his accounting on you?" As I once mentioned to a Revenue Canada employee, over the anonymous phone line of course, that there is a fate worse than death and that is to attract Revenue Canada's attention. Basically that is the only reason we need accountants.
Ed Andrews
Sherwood Park, Alberta
WAS THE JUDGE UNFAIR?
I remember you reporting earlier this week that the Judge St. Eve state she was only going to give 2 hours for the prosecutions rebuttal. It seems to have gone on for much longer then 2 hours.
I am confused and maybe that's because I am Canadian. First of all it doesn't seem right that the prosecution has a chance to rebut the defence's closing arguments at all. Second it seems like the judge is being unfair by giving the prosecution seemly unlimited time for rebuttal.
Jeff Dunnett
Kitchener, Ontario
BORE-A-BORA
Mark says, "How boring is Mr Sussman's re-rebuttal? So boring that the lady juror who has slept through the entire trial has suddenly woken up."
If he's too big a bore, he won't let you snore.
Larry Eubank
PLAY-BY-PLAY COMMENTARY
Mark - I've been reading your work for years and have frequently been inclined to drop you a line.
Today is the day I've got to tell you how much I enjoy your work. The last two posts regarding the Black trial have caused me to burst into tears with laughter. "Holding the Crowd Spellbound" and "Shoot me Now" have me tapping the refresh key constantly. This is a fantastic play-by-play description of what must be an incredibly trying (pardon the pun) ordeal.
Let us know how it works out with the Lady in Pink.
Daryl Pace
Toronto, Ontario
BREEDEN’S NEXT MARK
Black trial over: Breeden’s next mark?
http://www.thestreet.com/_dm/newsanalysis/businessinsurance/10365204.html
Paul Ballard
Canada
OVERWEENING PROSECUTORIAL POWER
Have you had time to notice the Durham/Nifong opera?
It may be that you and KCJohnson can compare notes, and come up with a great analysis of overweening prosecutorial power in the US.
Also, it seems it is a common occurrence, now, for college boys to hire strippers for parties on campus. Odd.
Heather McFarlane
Whitehorse, Yukon
TOO BAD
Make sure you read the Debbie Schlussel Review of the Daniel Pearl movie.
She totally and justifiably eviscerates it, though not with your style. Still, not bad though.
BTW, as a dual citizen, USA and Canada, I am following your coverage of Conrad Black religiously. Too bad the jury can't read and learn from your perspective. God protect the defendants.
Michael A Nissenbaum
Maine
SHOCKED BY DIANE’S COLUMN
I love the line (Western Standard) about history belonging to those who show up - brilliant.
My purpose is to ask about the column Diane Francis recently wrote about the judge in the Black trial. I don't know if you read it but I was shocked by the tone of it, and the implied conclusion. Truly, if I had to place writers on either side of a dividing line of POV's I would have put you and Diane on the same side - that column would seem to say otherwise.
Am I missing something in your coverage of the trial that she sees or is there an axe being ground that a mere pleb like myself may not be aware of?
Just curious.
Love your work. Thanks for doing it so well.
Jarrod Thalheimer
Kelowna, British Columbia
ALMOST AS GOOD AS FAWLTY TOWERS
I just read your blog and was laughing so often reading through the posts about the rebuttal of the rebuttal, a colleague in another office couldn't help but ask what was so funny. I knew if I told him, "the Conrad Black trial," that he'd have given me one of those “queer eye for a straight guy looks”.
In any case, having heard your voice before, I could imagine you saying what you wrote and that somehow made it even funnier, what with the accent, tone and inflection...
Reminds me of when I would watch Faulty Towers, or Martin Short when he was funny.
KSingh BCwala
Toronto "As Gay As It Gets", Ontario
AWW, THE BIG-SHOTS WERE BULLIED
After (yet again) plowing through a forum habituated by certain people that believe Conrad Black should be found guilty because he “obviously is”, something struck me. All of those people have this character trait in common: they think that a group of high-priced legal and board talent will blithely sign a thick document without bothering to pick through it, and will give a pass on a deal just because they're rendered naive and gullible when in the presence of '"Conrad The Terrible". Either that or they're secretly lazy, or both.
A moment's reflection will show the oddity in that attitude. How can people climb up to the point of charging big dollars for an hour of their services if they show the same naiveté as an office worker on a spending spree, and/or wilt into meek acquiescence when in the presence of a Big Name? Surely, this laxity would have shown early in their careers, and the force of competition would have meted its judgment on them.
Am I alone in discerning an underlying ideology in the hang-Black circuit?
Daniel M Ryan
UNFORTUNATELY, JURIES TRUST THE GOVERNMENT
There is little doubt in my mind that Lord Black will be found to be guilty, which is, of course, different than actually *being* guilty.
I believe that the general population has an inherent trust in the government and the judicial process - and that if one is sitting on a jury, it doesn't really matter whether the prosecution or the defense gives the best presentation, the jurors are serving their country and certainly, individuals wouldn't be charged unless there was a reason to do so, would they?
I attended a few years ago a detailed presentation providing an analysis and debunking of many of the prosecution's findings in the Steven Truscott case. Afterwards, I talked to another individual, and was surprised to find that his uncle had sat on the jury. His uncle essentially said about the case "We were all busy, it was coming close to harvest time, and the government said he was guilty".
Not very promising.
Erik Larsen
Calgary, Alberta
FACTS, DRAWN TOGETHER WITH EMOTION
Again, I have to say you are doing an excellent job of doing commentary on this trial. I think I'd need Prep H, a doughnut cushion and a large size bottle of NoDoze in order to get through the tedium. I enjoy the minutiae of such things, but can't suffer fools such as Cramer & Co. who can't admit they were ignorant of most of the facts when they got started in the investigation, but can't let it go for such would be to embarrassing. These people selling out and /or copping pleas should all feel like a bunch of prostitutes. Well actually more like sex slave strippers in Judy Sgro's riding. They bought into the prosecutor's deal because they thought that if they didn't they would also be going down. In Radler's case I understand the plea. He actually committed a crime. Maybe not one that would normally attract a prosecutor, but a breach of contract on the non-competes through his involvement with Horizon. He strikes me as they sort of person who wants to have his cake and eat it and yours as well. By the time they got to him, he was certain he had done something wrong, but wasn't sure what it was or how much they knew and they had him on the run.
All that is over and done with for now. My worry with conservative and/or free enterprise subscribers is that for the most part they do not have either the ability or the inclination to see how what they are saying to support their cause (in this instance 'their case') will sound to the peons, err people, jurors, judge, they need to convince. I've seen it time and again whether it is insurance brokers vs. gov't auto insurance or MDs trying to avoid a cap on billings. What they NEED to do (can I write it any larger?) is to not assume anything. It all needs to be in layman's terms. I have discovered this after years of discussing things with friends only to discover that even when my wife is interested I cannot use “shop talk”. I have to frame it in words and terms that make sense to her; not for lack of intelligence but a lack of familiarity with the topic or the terms. They also have to assume that this stuff is hard to follow for they average person. If Judge Amy thought it necessary to use the ostrich instruction, even she does not understand the basics of the case - has the prosecution been able to show that a crime has been committed or has she just been sucked in by the ever circling innuendo?
What I'm saying is that the defense needs to study the Wilford Brimley character in the Newman/ Fields movie “Absence of Malice”. This may seem rather insulting to the high priced Eds, especially the Canadian one. People usually buy from emotion not facts. Ask any salesman. You need facts, but in the end you draw them to the close with emotion. It’s even more important here than at Fast Fred's Hi Fi Emporium. Those jurors have already paid with 3 months of their time, a cut in pay and lastly the boredom and being made to feel like an idiot for not understanding everything.
The defense needs to make the jurors feel like they've been ripped off by the prosecution. They're the ones who dragged them in here with this bogus case, made them pay for weeks and months and all they got was a timeshare with a leaky roof a green slimy pool and no ocean in sight. the only way to get satisfaction is to acquit. Straight forward understandable point by point layman's terms with emotional heart-strings 'they dun us all wrong' sizzle.
Otherwise its Captain Bly and his associates set adrift for a long long time.
Victor Harder
St. Catharine’s, Ontario
NO CRIME TOOK PLACE
The prosecution displays Radler’s plea of guilty as proof that a crime took place. That then frames their case against Black and the other three defendants. Where a crime exists also must exist a perpetrator(s)
I think that the defence must hammer home that while Conrad is innocent of the charges, so is Radler. No crime took place.
Right now the prosecution has presented Radler as a man who was guilty of all charges against him and received a lighter sentence due to his cooperation. That establishes that a crime was committed.
In my opinion Radler’s guilty plea stems from a fear of going to trial and losing. Just because he plead guilty does not necessarily mean he was guilty, even in his own mind.
Rather than face the possibility (no matter how remote) of being convicted while defending himself in a court of law, he chose the guaranteed odds controlling his fate which would have him spending a few months in a country club jail.
The defence needs to put it in the jury’s mind that no crime was committed by anyone and that Conrad Black is on trial only because of another mans cowardice and lack of conscience in throwing another innocent man to the dogs because of that cowardice.
Bottom line no one here was guilty of anything except good - and legal – tax planning, despite Radler’s guilty plea. The only reason there is a trial right now is because Radler is a coward.
Ward Benedict
DRY AS DUST
Mark: I'm a long-time reader, both online and books. Enjoying your trial blogging.
You have put your finger on something with respect to lawyers: they are good talkers but very poor communicators. They are good with words, but only if they're written or spoken. Even the written ones have to be uninterrupted by images or graphics. The only elements of structure they will permit are the Linnaean sea of indents and Roman/Indo letter/number heads. I see this in my business - I'm a management consultant. We routinely work with a mix of graphics and text. Longhand is death.
Whenever I deal with lawyers it rapidly becomes clear that the only mode of expression they have is lengthy text and the spoken word. They're not even good at using words to create metaphorical images. Dry as dust.
The few exceptions stand out: for example, Johnny Cochrane's probability chart in the OJ trial, if you remember that, showing - exaggerating - how certain the jury would need to be to get "beyond a reasonable doubt" and convict. If I were a defense lawyer, I'd use that chart every single time, until it was formally banned, as it would have to be, because nobody would ever be convicted, the image is so powerful.
God help Lord Black (and the others). If Black stays out, I'd love to meet him!
Peter Carroll
ARE THEY CRIMES OR AREN’T THEY?
I am confused. You usually mock the charges as completely unfounded. But occasionally in the discussion you speak of "crimes" etc. without any detectable, to me anyway, indication that you are speaking hypothetically, ironically, or in any other manner which would modify the meaning of that word. Perhaps I need to read your "Court commentary for dummies" piece again?
Dick Estey
New Westminster, British Columbia
THE VERDICT DEPENDS ON THE CHARACTER OF THE JURORS
As I just walked out of a jury room, I thought I'd share my experience of what it was like to sit on a jury.
First of all, despite the unpleasantness of the experience, I have to say I was favorably impressed by the process. The jury of six was quite a cross-section: a black car dealer, two Orthodox Jewish men, a Chinese waiter, a medical technician and a middle-aged woman whose life wasn't entirely clear to me, but who had an armful of tattoos and a stud/jewel, thingy sticking out of her lower lip. The case was very brief. An elderly black woman had been a passenger in a car that had been lightly ("lightly") struck in the back, resulting in a complaint of whiplash. No objective sign of physical damage, complaint about some back and shoulder discomfort, and $10,000 in medical bills. The lawyer also wanted $30K in distress and suffering.
I was skeptical. The lady went to a lawyer a few days after the accident, who sent her to a medical clinic, which saw her three times a week for three months. The clinic sent the bills to the lawyer (I found this a bit strange--I like my bills sent to ME). During this time there was no consultation with the insurance company of the driver who hit the car to see if they'd cover the cost of the therapy. No sign of damage to the car (we were shown photographs), no sign of damage to the woman. The insurance company was willing to pay for the cost of the ambulance trip to the emergency room and the cost of the initial examination (x-rays, etc.: the examination showed no damage of note): nothing more. One witness took the stand, the woman herself. There was little cross-examination. The defense basically said that the bills for therapy made little sense, that the patient never saw the same doctor twice, and that there was little evidence that there had been any consistent treatment or follow-up. In the end, we had to confine ourselves to the evidence, which was the brief testimony, the medical reports and the photographs of the van. The plaintiff's lawyer did his best John Edwards imitation at the end, asking at the end for an additional $30K (boy, was I shocked!) He said a couple of things I didn't like, that we were required to give the plaintiff "the benefit of the doubt" and that we had to "be her advocate". I am a bit of a stickler for detail here, but I don't regard that as a juror's responsibility.
I also got stuck with being foreman.
We went to the jury room. I led off by saying we would never know the determinative facts of the case, because they were unknowable to anyone but the plaintiff. People commented on different aspects of the evidence, and what it seemed to indicate. The case was somewhat atypical of your typical whiplash sob-story, in that the woman claimed she'd gotten better after three months, which I took as adding to her credibility. The black car dealer was very patient, and was the last to speak in the first round: he said he thought we ought to give the lady $40K for pain and suffering (she had had to take Advil), in other words $10K more than what the plaintiff's lawyer asked for, so I braced myself for a long afternoon. And that pretty much set the tone for the next seven hours of debate. I knew I wasn't going to sell the idea of giving the lady nothing, so I agreed to a proposal to pay her medical bills, as this seemed like a muddled compromise that didn't seem to enrich anyone in particular, and I even agreed to 10K for non-economic "whatever" because I felt that sum covered my uncertainty (maybe she was telling the truth) without necessarily agreeing that this case was the most solid I'd ever imagined: no one would be exactly rolling in money afterwards. That became the basic agreement among five of us.
The debate over non-economic damages went on and on. The cute little medical technician turned out to be bright, articulate and tough-minded. Ditto the Chinese waiter: smart, articulate, and emphatic. He pretty much took over the meeting at a certain point (as I tend to anger people who disagree with me, I shut up). The tattooed lady performed pretty much as I expected at first: tormented, angry, bitter, but about half-way through the deliberations she stated that she was projecting her own situation onto the case, and after that she began speaking with a lot of clarity and focus. The other Orthodox Jew made a number of quiet, sensible comments that were almost completely ignored. Five of the six of us tinkered with the $20K package. But the sixth juror wouldn't budge. He wanted the little lady to walk out of the courtroom with $50K for a tap on the bumper that I've experienced maybe 40 times in my life.
On the second day of deliberations, after several trips to the courtroom to be told (1) stick to your sense of what is right, and (2) reach a unanimous agreement, the 6th juror went down from 40K to 30K--AKA 100% of what the plaintiff asked for originally. The rest of us made it clear we weren't going to move much, if any, toward a higher figure (I already thought I'd been a little sickeningly generous with someone else's money) and eventually the case ended in a mistrial. I wasn't unhappy with that result, because if there'd been six of ME on the jury, she might have got nothing beyond what the insurance company had originally been willing to pay. Everyone made it clear to the Holdout that he was telling the lady to trade $20K in the hand for some unknown amount in the future (if the case ever came to trial again), but he didn't care: he was certain she'd get a better deal than from the likes of us. Could be.
So a jury trial boils down to the jurors. Change the composition of the jury, you change the outcome. The jury this time was composed of working people to whom a thousand bucks is a lot of money, and who make insurance payments. We were willing to pay something, but not 50K and it boiled down to all or nothing. It was rough and the debate got a little raw at times. This is how democracy works. Messy doesn't begin to describe it. But these were smart people. It's a bit humbling to see how smart the average American is. You'd think we'd do better as a nation than we do.
Now it's Lord Black's turn. I really don't care too much about what lame immigration bill finally gets passed. I doubt if Congress is capable of passing coherent legislation on any subject, and tend to wish they would just go away. I care a lot more that Conrad Black doesn't get a raw deal. At this point in my life, my sense is that we have to concentrate on individual cases. When an honest man who played by the rules gets destroyed by the government for nothing, we all have reason to be concerned: no amount of legislation is going to prevent the Divine Blowback for systemic injustice like that. It pains me to see that a man can live honestly, abide by every rule in the book and still find his fate in the hands of twelve people who may or may not do the right thing. If the law cannot provide a clear path for a man to follow to avoid running afoul of his government, then something is terribly, terribly wrong with the law, and we are all going to suffer in ways that we cannot begin to imagine.
Ezra Marsh
Baltimore
THE PROSECUTORS SHOULD NEVER HAVE LAID CHARGES
I am a Canadian tax lawyer and have been following this case with some interest because I simply cannot believe that this case made it past a junior prosecutor’s desk without being thrown in the garbage. I try to read your comments as well as other comments in hopes of getting as many sides to this story as possible.
I am no criminal lawyer but my recollection from law school is that a crime is generally broken into two parts: the actus reus and the mens rea. The actus reus is the act of committing the crime and the mens rea is the necessary level of intent behind the crime which turns the act into a crime.
Some mens rea is easy to establish from the actus reus. For example, the mens rea for robbing a bank is usually easy to determine once you establish the accused was in the bank holding a gun to the tellers head screaming "Give me all your money or you are dead". Other times, the mens rea can be difficult to establish because some acts are not necessarily indicative of the intention behind it. A good example would be murder. The actus reus is the killing of someone and the mens rea is the intent behind the killing.
The elements required to establish the actus reus for murder are 1) a person was killed and 2) the accused caused the death of the person. If no one was actually killed, or if someone or something else killed the person, then the actus reus has not been established and there is no need to turn to the mens rea. The accused must be acquitted.
Once the actus reus is established, then you still don't have a murder (or even a crime at all) unless and until until you can establish the mens rea required for the crime. The mens rea in a murder would be determined as follows: did the accused intend to kill the person and planned to kill the person (i.e they had a fight in a bar, after the fight the accused went home, got a gun and came back and shot him)? If the answer is yes, then the accused has satisfied the mens rea for first degree murder. Did the accused intend to kill the person but did not plan it (i.e they had a fight in a bar, the accused pulled out a knife in the heat of the moment and stabbed him to death)? If the answer is yes, that is the mens rea for second degree murder. Did the accused intend to injure the person but not kill him (i.e. they had a fight in the bar, the accused punched the person too hard and accidentally killed him)? If the answer is yes, then its manslaughter. Did the accused act in self defence? (i.e. the person attacked the accused in the bar with a knife in a psychotic rage and in the ensuing struggle the accused only managed to save himself by stabbing the person with his own knife)? If the answer is yes, then self defence is not a sufficient level of mens rea and no crime was committed. Did the accused not even intent to hurt the person but acted in such a way that he was negligent in causing the persons death (i.e the engineer who designed the bar didn't design the roof strong enough and the roof fell in)? Then that is criminal negligence causing death. Did the accused accidentally kill the person (i.e. he tripped over a bar stool, his beer mug flew out of his hand and hit the person in the head, killing him instantly)? If so, then no level of mens rea is established and no crime was committed.
Usually, the easier thing to establish is the actus reus. The mens rea is the more difficult thing to establish because, as demonstrated above, the very same act may be first degree murder or not a crime at all depending on the level of mens rea that can be established. This is first year law school stuff.
The problem I have with the Conrad Black trial is that the prosecutors haven't even done the easier job of establishing the actus reus. They have also been trying to infer the mens rea directly from the actus rea without ever establishing the actus reus exists. They have even stooped to trying to establish the actus reus by pointing to entirely bogus examples of his mens rea, such as the Bora Bora boondoggle. Its like saying Conrad Black must be a murderer because, even though we can't find a dead body and nobody has reported anyone missing, he eats roast beef and, therefore, must be guilty of murder because he clearly has a history of enjoying himself due to the death of other beings.
In my humble view, the prosecution has made a mistake a first year law student should not make. The prosecution has received information of an alleged crime (i.e the Breeden Report) and then has proceeded on the assumption that the information is a) accurate and b) establishes the actus reus of a crime and c)is evidence of the requisite level of mens rea for the crime, without actually analysing the information properly. If done properly, the job of a prosecutor is to analyse information it receives along with any other information it has and then test it rigorously against the elements necessary to establish the actus reus of a crime. If there is no actus reus, then there can be no crime. If the actus reus appears to have been satisfied, they still have a duty to determine if there is sufficient evidence to establish the mens rea of the crime. In this case, I strongly suspect they never looked further than the Breeden Report, never considered the evidence that was not in the Breeden Report and never did any meaningful analysis of what the Breeden Report proves in light of the other evidence available.
Case in point: In order to be theft, somebody has to be deprived of something which is rightfully theirs. Furthermore, the alleged thief must not have a "colour of right" to the property. The prosecutor must then go through something like this thought process.
What was stolen here? The non-competition payments. Who did the non-competition payments belong to? Whoever was covenanting not to compete. Who made those covenants? Conrad Black among others. What value does not competing with Conrad Black personally have? a huge value. Are non-compete clauses common and legal? Yes. Were the shareholders entitled to the non-compete payments? Not if they were not a party to the non compete agreements. Were the shareholders entitled to all the proceeds of the sale? That depends on what the proceeds were for. If the proceeds were for the sale of the business and only the business, the shareholders are entitled to them all. Here the proceeds were for a mixture of assets of the corporation and non-competition agreements, therefore the shareholders were not entitled to all the payments. So were the shareholders actually deprived of anything? Depends on if the non compete payments were too much. Were the non-compete payments too much? How do I know, I am a lawyer not a valuator, I had better do some research on non-competition payments or hire a valuator and get his opinion. What is a valuator likely to say? Well the parties to the non-compete were at arms length so what valuator is going to conclude that arms length parties came to the wrong value when the theory of valuation is to guess what arms length parties would actually do. I suppose they could still be outside the realm of normal, though. Assuming for the moment that the payments were excessive, and that the shareholders have been deprived, did Conrad Black have a colour of right to those payments? Well he signed the non-competition agreement and gave up the right to compete, so he had a contractual right, which is a more than a colour of right. So what chance do we have of establishing the actus reus? I think very little. Conclusion: This may be lead to a civil action between Black and his shareholders if they want to go at it, but we shouldn't prosecute unless we can get better evidence than this.
Second case in point: The Horizon non-compete payments. This looks on the surface like a bit of a sticky wicket for Mr Black. I know my first thought was that he has some exposure on this issue because, as Radler put it "I was paying myself not to compete with myself." The optics are bad. Blackco A pays Black not to compete with Blackco B. However, if the prosecutor does his job properly, he looks at the other evidence and asks the following questions. Did Black control Horizon? No. How does that affect Blacks ability to not compete with himself? Well, if he doesn't control Horizon, it could be sold to a third party and he may not be able to do much about it. What would happen if Horizon were sold under circumstances that Black does not agree with and there is no non-compete with Black? Black would not sign a non-compete with the new owner. What value would Horizon get out of a noncompete with Black and/or Hollinger then? Well, if Horizon ever gets sold to a third party, it ensures that it has a non-compete in place which would increase the value of Horizon. Who did control Horizon? Radler, although Black didn't know it at the time. Did Black's non-compete then benefit Radler? You would have to say he was not upset to get it. Do you want to rely on the evidence of Radler under these circumstances? Not a chance. Did Black receive the non-compete payments? I don't think so, I think one of the Hollingers did, but lets assume he did. Did Black and or Radler intend to sell Horizon? Who knows but it would not be inconsistent with their pattern of buying and selling newspapers. Who has been deprived of anything here? Well again, if there is valuable consideration given by Black, its hard to say that the shareholders of Hollinger have been deprived. Assuming they are deprived, did Black have a colour of right? Well his contract is enforceable isn't it, and he is not a controlling shareholder. Conclusion: We're not close to establishing anything criminal yet. Lets get a better witness than Radler before we go any further with this.
Based on the evidence I have read about, the prosecutors should never have laid charges in this matter let alone let it get to trial. Their arguments for conviction would be somewhat thin if they were used as an answer for a first year criminal law exam. If Black gets convicted, it will go down in legal history as the 21st Century's version of the Salem Witch Trial.
Name withheld
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