One For The Prosecution

According to a report by Ameet Sachdev, webbed by the Chicago Tribune, Judge St. Eve will give the "ostrich instruction" to the jury. This instruction "allows them to consider whether Black or the other defendants intentionally avoided knowing about the crimes which allegedly occurred."

The allowance of this instruction was discussed in an interview with Paul Waldie on BNN, aired at 5:33 PM ET. The “ostrich instruction” is significant for the case. It applies if a defendant is believed to be “willfully blind” to a crime, notwithstanding whether or not mens rea is present in the mind of that defendant. (It can, of course, apply to more than one defendant in a particular criminal trial.) The defense objected quite strongly to the inclusion of this instruction, but Judge St. Eve ruled that the prosecution had presented enough evidence to rate it. Mr. Waldie also discussed the restriction of count 10 against Jack Boultbee, while noting that Mr. Boultbee still faces all 11 counts.

When asked which side has the edge by Amanda Lang, Mr. Waldie answered that it was impossible to tell. There are too many pieces of evidence that have to be tied together in the closing arguments. Thus, the arguments will be crucial to the outcome of the case.

The prosecution's closing argument will have two main themes. First of all, the buyers (except for Izzy Asper with respect to Conrad Black) didn’t want the non-competes mentioned in the indictment put in to the sales contract, and didn’t even know who the recipients of the payments were. Secondly, the defendants lied to the board of directors. The closing arguments of the defense will have two main counter-themes: every non-compete payment mentioned in the indictment was thoroughly documented; and, the buyers wanted those agreements because they voluntarily signed the purchase contracts, with the non-competes in them.

In Mr. Waldie’s opinion, the best lawyer in the trial is Ron Safer. He might, although indirectly, even win an acquittal for Conrad Black himself as well as for his client, Mark Kipnis. As far as Mr. Black's defense team is concerned, both Edward Genson and Eddie Greenspan will make parts of the closing argument for him.

----------

Mark Steyn, in his Maclean's Conrad Black trial blog, makes the point that the pallor that Conrad Black exhibits when in the courtroom, noted often in recent reports, has a more sensible explanation than either fear or guilt: tiredness. Conrad Black's still night-owling. Mr. Steyn has also posted a second analysis of where each defendant stands - this one focuses on Peter Atkinson.

Steve Skurka, in his blog "The Crime Sheet," has focused upon the ostrich instruction, confessing that its relevance to the trial has left him a little perplexed unless its purpose is to fill a significant hole in the prosecution's case. His entry ends with an anecdote from Iran which shows that other legal systems in the world are decidedly peremptory.