Going Through The Motions

The rulings made by Judge St. Eve that have been reported on so far, are both denials of defense motions, according to Mary Vallis of the Financial Post. First of all, Conrad Black's defense will not be allowed to recall David Radler; "the judge said that the issue the defence team wanted to question was 'somewhat of a collateral matter' and that she thought Edward Greenspan, Lord Black's Canadian lawyer, had done an 'effective' job of cross-examining Mr. Radler about what he know about serving his sentence in Canada during Mr. Radler's time on the stand in May. " The second motion denied was from Mark Kipnis' counsel; it asked for a mistrial. "In the judge's ruling on Mr. Kipnis, she said the jury has been instructed that statements that the prosecution made in opening arguments, which Mr. Kipnis's lawyers objected to, are not evidence." She did, though, admit that she was "'surprised'" by the testimony by Mr. Radler about the real reason for the bonus, but she still decided that the issue had been adequately dealt with under cross-examination.

Four other reports have been issued about the denial of the motion to recall Mr. Radler. Paul Waldie's, webbed by the Globe and Mail, discloses that Judge St. Eve justified the rejection of the recall-Radler motion by saying also that "Mr. Greenspan had plenty of time to find out the information. 'It's information you could have obtained and asked him about,' the judge said." The Chicago Tribune had webbed a Bloomberg item on it, by Joe Schneider and Andrew Harris, which reports the decision and adds a little background. The Toronto Star's webbing of the Associated Press report on Judge St. Eve's rejection mentions the ruling and the main reason for it. CBC News' report contains the ruling and a slightly different background from the Bloomberg report.

Two reports are out that deal with Mr. Kipnis' mistrial motion. The first, also a Bloomberg excerpt that's been webbed by the Chicago Tribune, explains that the successful granting of it would apply to Mr. Kipnis only, splitting his case from the three other defendants'. It also has a legal expert explaining why Mr. Kipnis' counsel would ask for one: "'The advantage to the defendant of being retried separately is that much of the evidence that would be potentially admissible in a joint trial would not come in in a retrial,' said Dean Polales of Chicago's Ungaretti & Harris and a former federal prosecutor. 'You exclude a lot of evidence that might spill over onto the defendant because of who he's being tried with.'" The Reuters report is much briefer.

A post in Mark Steyn's Maclean's Conrad Black trial blog says that Mr. Kipnis' motion to have all the charges against him dismissed has also been rejected by Judge St. Eve, through the same reasoning that she used to reject the mistrial motion. (He doesn't mention the mistrial motion.)

The version of Ms. Vallis' report that has been webbed by the Edmonton Journal has some added information, including two additional quotes from Judge St. Eve: "The judge said she was paying close attention to the jury and that the jurors were 'paying very close attention to that.'

"She concluded by saying the arguments presented by Mr. Kipnis's attorney, Ron Safer, will be 'very powerful for closing arguments.'"

In a BNN interview, aired at 1:48 PM ET, Mr. Waldie reported on the two rulings made by Judge St. Eve. He also said that the rule-29 motions for dismissal have yet to be ruled upon, but they are a long shot – except perhaps for Mr. Kipnis’, which has Judge St. Eve's official interest. Another motion has been filed, to recall Paul Healy from one of Conrad Black’s lawyers. That lawyer wants Mr. Healy to testify on how he handled Mr. Black’s expenses. Mr. Black's defense team has found an E-mail from Mr. Healy pertaining to this, which indicates that Mr. Black had more probity regarding the separation of the two than has been widely believed. (A note: Mr Waldie's report implies that the motion to dismiss that Mr. Steyn wrote about was the mistrial motion.)

A full Bloomberg report on both rejected motions, by Joe Schnieder and Andrew Harris, has been webbed. "U.S. District Judge Amy St. Eve in Chicago gave the double victory to the government today as the trial nears its end. She denied Black's request to recall Radler, a former Hollinger president, so defense lawyers could attack his earlier testimony. She [also] rejected a mistrial motion by ex-General Counsel Mark Kipnis." Regarding the Radler motion, the report quotes a former U.S. prosecutor now in private practice: "'It's highly unlikely that the defense ever expected to win that motion,' said Steven A. Miller... 'The legal system seeks finality. All attorneys are expected to get their work done during the portion of the trial that's allocated for that particular subject matter.'"

[An updated version of the same report has added a quote from Hugh Totten regarding the rejection of the mistrial motion. He said that Judge St. Eve has, in his opinion, left clear grounds for appeal of any conviction of Mr. Kipnis. It also has added another quote from Judge St. Eve's ruling: "The government's evidence 'may not be the strongest inference but I find Mr. Cramer did not act in bad faith,'' St. Eve said."]

There is also a full Reuters report on the rejected motions, by Andrew Stern. With respect to the Radler motion, the report quotes Judge St. Eve as saying "that she was rejecting 'your desire to impeach him further'" before making the already-quoted points about it being a matter that the defense could have found out about earlier, and that it was dealt with adequately under cross-examination. With regard to the mistrial motion, Mr. Stern writes: "Had she granted the request, Kipnis would have walked free immediately." The refusal to grant this motion "cast doubt on whether she would look favorably on pending requests to dismiss all the charges from Kipnis and the other three defendants that were filed after the government rested its case. Such motions to dismiss are common and usually fail, and the judge has indicated her doubts about only a few counts."

The full Associated Press report is also out, as webbed by the JournalGazette Times-Courier; it's been written by Mike Robinson. Like the Reuters report, it recounts both motions and their fate. With regard to the latter, it relates: "Safer argued that statements by the government prejudiced the jury. But St. Eve declared that whatever had been said it did not warrant a mistrial.... [T]he statements did not create enough prejudice to create a severe miscarriage of justice that would justify" granting Mr. Kipnis' motion.

A brief mention of the rejection of the recall-Radler motion has made it onto Chicago Public Radio, with Diantha Parker reporting. There was also a mention of the trial on BNN's "Squeeze Play." Today's co-host Jacquie McNish noted that the reason why Mark Kipnis was charged at all was because of the (currently fashionable) “gatekeeper” theory – he should have known what was going on. He was a “necessary accomplice.” This discussion between Ms. McNish and Amanda Lang segued into a discussion of the rise of private equity. Ms. McNish was quite firm in denying that the secondary effects of the Sarbanes-Oxley Act were accelerating this trend.

The same Bloomberg report mentioned above has been updated yet again, with an important item added: "Black's lawyer Marc Martin said the prosecutors failed to prove the case against his client and asked St. Eve, in a 26-page court document filed late today, to acquit Black or at least dismiss some of the charges against him, including obstruction of justice for having removed boxes of documents from his office in 2005." This motion is a little more than the standard Rule 29; it comprises 26 pages. A spokesperson for Patrick J. Fizgerald said that the U.S. attorney's office is preparing "'written responses'" that will be filed this evening.

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In an entry dealing with both of Mr. Kipnis' motions, Steve Skurka, in "The Crime Sheet," predicted that both will fail. (He's already been proven right with respect to the mistrial motion.) He did point out, though, that Judge St. Eve took them both seriously. (This will probably affect her instructions to the jury.) He ends this entry by concluding that the two witnesses heard from yesterday, James Reda and Prof. Jinyan Li, were quite effective for the defense.

Also, in the Toronto Life Conrad Black trial, the "Courtstalker" has garnered a snippet about Barbara Black's news channel preferences. In another thread, a commentator by the name of "Megan T" has, in a [five]-part comment, gone through all the charges that Conrad Black faces and has assigned a probability figure to the chances of conviction for each category of charge. Her overall conclusion: "Overall probability of conviction on at least 1 charge: 95%."