Mark Steyn and Old Memories, Badly Recalled

Mark Steyn's report on Craig Holick's testimony pictures a witness who got his own comeuppance on the stand yesterday. According to Mr. Steyn, Mr. Holick ended up contradicting his own testimony, with his recall mechanism falling apart. (This failure of recall can be explained by Mr. Holick being a coached witness for the prosecution.)

The way that Mr. Steyn describes Mr. Holick's recall difficulties makes for an interesting parallel to Mr. Black's own testimony in the 1982 injunction/lawsuit, launched by Hanna Inc., to block a takeover offer from Norcen, then controlled by Hollinger Argus through its majority holding in Labrador Mining. (Labrador controlled 36% of Norcen in 1982, according to Richard Siklos, Shades of Black, p. 74.) Although Mr. Black was not CEO, he was chairman of Norcen's board at the time of the takeover attempt. Nowadays, combining the roles of chairman and CEO is common, but back in the days when the professional-management ethos was being implemented in public corporations, separation of the chairmancy and the CEOship was recommended, to keep the CEO properly overseen. In fact, it was not uncommon to assume that a public company permitting a chairman-CEO risked a potential conflict of interest, to the detriment of its shareholders.

During a deposition he had to make for the suit, Conrad Black was asked about the conflict between a Norcen board resolution, which he had to sign off on, and a later filing to the SEC. That resolution, passed on September 9, 1981, contained the words, "U.S. Acquisition: Mr. Battle [the President and CEO] stated that the Company [Norcen], subsequent to telephone contact with the members of the executive committee [of Norcen's board of directors], had initiated through stock market transactions the acquisition of a 4.9 per cent stock interest [regular voting shares of common stock] in a U.S. company [Hanna] listed on the New York Stock Exchange with the ultimate purpose of acquiring a fifty-one per cent control position at a later date." (Quoted in Siklos, p. 79.) The SEC 13-D statement filing, made on November 9, 1981, said that Norcen had "acquire[d] an investment position in Hanna" with the further note that Norcen planned to acquire more shares (Siklos, p. 82.) Perhaps, Mr. Black's staff had assumed that this was a well-understood way of signalling to the SEC that Norcen did plan for an eventual takeover, but no definite steps in that direction had been taken as of the time of the filing of the 13-D.

Nevertheless, the (at least ostensible) contradiction between the two documents, and the fact that the Norcen board resolution was passed before the SEC statement was filed, was considered by the Hanna legal team to be the smoking gun. So, as it turns out, did the judge in the injunction case. Mr. Black's testimony didn't help; the judge called it "strained and unpersuasive." (Ibid, p. 89.) In fact, the testimony excerpted from Mr. Black's deposition suggests that he either was flat-out dissembling, or that he had not reviewed either document while signing it. (Ibid, p. 88)

The moral of the story? If you're giving testimony in a United States court of law, and you can't recall something, then it's prudent to simply say "I can't recall" and stick with it - even if you get compared to John N. Mitchell afterwards. The verbal dances seem best confined to the watering hole.


To move to a lighter item, if you're familiar with the Conrad Black story, at least one of the comments on Mr. Waldie's article in the Globe and Mail will be somewhat amusing.


Also: an excerpt from Naomi Klein's Guardian article on the trial was quoted approvingly in a recent post by Jane Smiley, which discusses the dilemma of democracy from a liberal point of view.