Defense Closing Arguments, Day 2

Again, Mark Steyn has the first details of the second defense closing argument, made by Gus Newman for Jack Boultbee. Csr. Newman has continued with a tactic that Edward Genson had used yesterday afternoon and earlier this morning: showing that the prosecution's closing argument was merely glib. In addition to reviewing the documents that the Audit Committee had seen, he also brought up the testimony of Pat Ryan, the only defense witness deemed hostile.

The last part of a report by Romina Maurino, as webbed by Canada East, has other details on Csr. Newman's closing argument. The bulk of it has excerpts from the end of the closing argument for Conrad Black. One that covers the entire case is Csr. Genson saying that "the government 'overreached' in going after Black." He "accused prosecutors of manipulating the facts to produce their case." Csr. Newman himself has insisted, "'The documents are the documents and they speak volumes.'" He also said that witnesses can't go up on the stand and deny responsibility for their previous actions in the way the Audit Committee members had.

The Chicago Tribune has webbed an Associated Press report that concentrates almost exclusively on Csr. Genson's final hour - particularly, his attempt to humanize Mr. Black. At its end, it mentions that "U.S. District Judge Amy J. St. Eve said Tuesday it appeared likely that closing arguments will spill over into next week. "

Mr. Steyn is back in running-commentary mode today, with four entries subsequent to the one linked to at the top of this entry (as of 1:50 PM ET.) The most recent one features a clever argument from Csr. Newman: it is reasonable for a newspaper proprietor to ask for a non-compete agreement from a comptroller of a competing media company as a take-out maneuver, or as a disguised 'yellow-dog' contract, to prevent him from skipping off to a less distant competitor. (For example, Mr. Boultbee would have to tell a head-hunter that he couldn't work for any media company that CanWest directly competes with, else he's in breach of his agreement, for as long as it's in force.)

Speaking of other media companies, BNN aired an interview with Amanda Lang, aired at 1:53 PM ET. She reported that Csr. Newman is also focusing on attacking David Radler; he also said that the Audit Committee had approved Mr. Boultbee’s non-compete agreement four times. At the end of the interview, Ms. Lang noted that this case is very complex - not necessarily boring, just complex.

Andrew Stern of Reuters confines his report to the final hour of Csr. Genson's part of the closing argument. The report starts off with an encapsulation of Edward Genson's final argument: "Conrad Black is a stubborn but innocent man, the victim of manipulative, over-reaching government prosecutors and shareholders who wanted to break up his publishing company..." It also notes that Csr. Genson had explained the "intemperate-sounding" E-mails introduced by the prosecution as written by a man dogged by institutional investors, and was fighting back. With regard to the obstruction-of-justice charge, "Genson told jurors [it] amounted to piling on[, as well as a deflection maneuver]... the charge was just an excuse for prosecutors to present jurors with a video tape showing Black removing the boxes."

A report webbed by CBC News contains an explanation of the term "piling on" by Chicago Tribune reporter Ameet Sachdev: "[Mr.] Sachdev told CBC News that Genson said some the multiple charges amounted to 'piling on by the government — that there was no criminal intent in those activities and were … issues for contract law and civil court.'" The bulk of the report deals with Csr. Genson's final hour. So does the Telegraph report by David Litterick.

The first half of Mary Vallis' report, webbed by the Financial Post, does so too. Near its end, though, it relays this part of Csr. Newman's closing argument: he "reminded the jury of testimony from experts who said non-compete agreements can not only be requested by buyers, but also by sellers and advisors helping to negotiate a transaction." This testimony showed that non-competes requested by sellers can be legitimate too. The report also contains a one-liner from Csr. Newman, which capped a gag between he and Eric Sussman.

CBC Newsworld aired an interview with John Hueston, as of 3:19 PM ET, about the performance of the defense during their closing arguments. Mr. Hueston offered this advice: the defense needs to keep “hammering” away at David Radler’s credibility. If Radler's testimony is impugned, then the government has no case. “He himself defines ‘reasonable doubt’.” Questioning the prosecutors’ motives for laying the charges is also a good strategy.

Eddie Greenspan’s apology might help Conrad Black's defense because jurors tend to be suspicious of “hired guns.” But, the apology has to be followed through upon in order to make it effective.

The prosecution has the last word, so the defense has to watch it during their closing arguments. One useful tactic is to drop some baits in the arguments, ones that would encourage the prosecutors to use up their reply right on case peripherals. It’s reasonable to expect the jurors to deliberate on the case for at least a week.

CTV NewsNet has an interview with Steve Skurka, about both closing arguments in today's proceedings. Csr. Genson was much more effective today than he was yesterday afternoon. With respect to the obstruction of justice charge, he emphasized that there was no evidence presented that Black knew about the SEC order. Csr. Skurka described the class-bias issue, used by the defesne, as the “class card.” Gus Newman's strategy of asking the jury to rely upon the documents is a powerful one. Documents can’t be altered, nor can they change their story.

With respect to Csr. Genson's final hour, Paul Waldie has written a detailed recounting of it. Part of his write-up reports on how Csr. Genson dealt with the Manhattan apartment: "Lord Black's purchase followed the letter of a deal he struck with the company years earlier. That deal may be faulty, [Csr. Genson] told the jury, but that doesn't make the transaction illegal. 'This is what they agreed to,' he said. In fact, Mr. Genson argued, Hollinger did not live up to the terms of the deal." The latter half reviews Csr. Greenspan's part of the closing argument, and ends with how Csr. Genson accounted for the Bora Bora trip.

A report by Michael Sean Comerford, webbed by the Illinois Daily Herald, has the same focus. It quotes Mark Steyn's description of Edward Genson, and notes that the unloading Hollinger Int'l's assets was decided upon to reduce its outstanding debt.

According to the Bloomberg report, written by Joe Schneider and Andrew Harris, Csr. Genson said that "[f]ormer Hollinger International Inc. Chairman Conrad Black deserved a free New York apartment and a partially paid birthday party for his wife because he was the 'face' of the company." With regard to the apartment, Csr. Genson "reminded jurors that Hollinger had agreed to pay for furnishings and upgrades to the apartment.... Hollinger breached its agreement with Black by not paying for the furnishings... Black ended up paying $4.5 million for improvements over the six years and was reimbursed for only $2,181 by the company..." Near its end, it relates that Csr. Newman, as part of his closing address, showed taped testimony from Beth DeMerchant, in which she said that it was likely that Mr. Boultbee would be receiving a non-compete payment for the CanWest deal. He also said that the $80 million was already set aside from the proceeds anyway, adding that Mr.Boultbee didn't take a nickel from Hollinger Int'l at the point that a payment was journalled to him.

There was another interview with Amanda Lang aired on BNN, at 5:33 PM, in which she reported that the defense continued with some points they established yesterday. They’re having some success “undermining the government’s credibility.” Not only Csr. Genson but Csr. Newman are doing this. The still-stuck-to Radler theme is: he’s a liar, and he masterminded any scheme that was hatched.

Both Csr. Newman and Patrick Tuite spoke for Mr. Boultbee today. Csr. Newman said he didn’t want to speak for very long so the jury could sequester and end the nightmare for his client. He also said that the CanWest non-compete payment for Mr. Boultbee was legitimate, so why would Mr. Boultbee question the others he had received?

Co-host Kevin O’Leary asked, if the CanWest non-compete payments were okay, then what’s wrong with the others? Ms. Lang replied that a certain answer to this question is at the heart of the prosecution's theory: in order to be legitimate, the buyer has to request the attached non-compete agreements. The trouble for the prosecution, though, is that the buyers did voluntarily sign the purchase contracts with the non-compete agreements, and payments, in them.

The interpretation of the ostrich instruction is really up to the jury. Regarding the jurors' attentiveness, Ms. Lang said that there were enough note-takers to get all the evidence into the jury room, and that the bulk of the jurors are attentive. The attention level becomes crucial when Judge St. Eve's instructions are given.

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Roger Martin, in the Toronto Life Conrad Black trial blog, explains why he's skeptical about the predictions of conviction: in a name, Allan Funk. He makes the point that "the prosecution [uses the theme that] greedy, wily, and arrogant equates to fraudulent, and I suspect the defence will counter with greedy, wily and arrogant equates only to unseemly."

Also, from the same blog, Douglas Bell has written a recounting of the closing argument for Conrad Black's defense. He points out some of Eddie Greenspan's foibles in it, but concludes that he did a credible job. The last paragraph deals with Csr. Genson's end-of-day slump yesterday and this morning's recovery.