The Rest Of The Closes (So Far)

Mark Steyn is the first observer of the Conrad Black trial to have details on Michael Schachter's finishing of the closing argument for Peter Atkinson. After noting (with complaint) that Judge St. Eve is telling the counsellors to hurry it up a little, he passes along two points made by Csr. Schachter: a supposedly fraudulent document was drafted by the uncharged Beth DeMerchant, and Mr. Atkinson's hiring of "'the best law firm in the United States to work with the best law firm in Canada'" is not exactly consistent with fraudulent intent on Mr. Atkinson's part unless the defintion of 'best law firm' has been seriously warped in recent years. Mr. Steyn also points out that the jury seems to be paying little attention to Csr. Schachter at the time he made that point that Mr. Atkinson's E-mails recommending more disclosure of the suspicious transactions is inconsistent with a criminal about to be nabbed.

Rick Westhead also has a report on the rest of Csr. Schachter's opening address, one webbed by the Toronto Star. It begins with: "The second-last day of Conrad Black's criminal trial began this morning with the government's case under renewed attack from a lawyer for one of his co-defendants." Mr. Westhead also mentions supposed juror inattention to the defense's closing arguments, which the defense lawyers have attempted to staunch by using courtroom theatrics and visual aids of their own. He describes a rebuttal chart brought in by Csr. Schachter, and how the counselor has used it.

A briefer Canadian Press report has been webbed by 680 News. It starts off with: "A defence lawyer for one of Conrad Black's co-defendants says U.S. prosecutors are 'twisting and straining' to make a case against Peter Atkinson." It further notes that Ron Safer, defense counsel for Mark Kipnis, is next.

An updated version of the same report, credited to Romina Maurino and also webbed by 680 News, has excerpts that are consistent with the Atkinson defense's overall theory, that Mr. Atkinson acted the same way an innocent man would; thus, the prosecution has failed to prove its case. In Csr. Schachter's words: "There is no real key evidence because it's hard to find incriminating evidence against an innocent person."

Mr. Steyn, amongst a burst of short entries to his Maclean's Conrad Black trial blog (nine today as of 1:30 PM ET,) has reported that Csr. Schachter is done. The last part of his closing argument featured he asking Mr. Atkinson to stand up. According to Mr. Steyn, the court saw "a bald sheepish man looking a little flushed and embarrassed by his moment in the limelight." The next entry has Ron Safer's opener for Mark Kipnis: "Mr Safer pointed out [that] there's nothing sillier than a powerful argument [meaning: the prosecution's opening statement] you can't deliver on."

An updated report by Paul Waldie, webbed by the Globe and Mail, contains an anticipation of what Csr. Safer is expected to concentrate upon, but it does mention that Mr. Kipnis' counsel has started off with the testimony of David Radler: "Mr. Safer has seized on Mr. Radler's testimony as evidence that Mr. Kipnis did not participate in fraud at Hollinger."

In a BNN interview, aired at about 1:55 PM ET, Amanda Lang reported on an issue that is going to be included in the instructions to the jury: the relevance of the doctrine of "entire fairness." Put briefly, if a transaction meets this standard, then there cannot be any "deprivation of honest services."

As far as Csr. Safer's closing address is concerned, he used an argument that Ms. Lang believes to contain a mistake: since there was no intent, this case should be in civil court. She thought this line of reasoning was a mistake because it could be seen as an implicit admission of civil culpability. In the sense of protestation of innocence, it is less strong than the argument that everything was above-board. (I should note that Ms. Lang is not a lawyer.) She ended with a notice that jury deliberations could begin Wednesday, not Tuesday, as things are moving along more slowly than expected.

Ms. Maurino's report has been further updated, as webbed by 680 News, with this additional information on Csr. Safer's closing address: Mr. Kipnis has had a lifetime record of honesty; he's habituated to playing it straight. People who are that way don't jettison those habits on a lark. In addition, the testimony of the government's star witness, David Radler, has exculpated Mr. Kipnis by implication, which seals up the first point about there being no reason for Mr. Kipnis to change into a doppleganger of himself. "The prosecution, Safer charged, 'started with a conclusion ... and then worked backwards....'"

Another highlight from Mr. Steyn's coverage of the defense's closing arguments today is the highlighting by Csr. Safer that the wording of the original "Paragraph B," that part of the contracts dealing with the non-compete agreements which Julie Ruder asserted were fraudulent, was in fact "drafted... by Mr Henson, the lawyer for the buyer, CNHI. As Mr Safer said, 'Paragraph B is Henson's language, not Mark's.'"

A Bloomberg report, written by Thom Weidlich and Joe Schneider, has details on both Csr. Safer's closing argument and Csr. Schachter's. One highlight from the former's argument, quoted in the article, is Csr. Safer's emphasis to the jurors that they should not hold it against his client that he refused to testify in his own defense. "'I know you wanted to hear from him directly,' Safer told the jurors. He didn't explain the reason for the decision, noting only that the government has the power to 'point an accusing finger' at a defendant on the stand and the law requires jurors not to take into consideration the decision not to testify...."

There was another interview with Ms. Lang, aired on BNN at 6:34 PM ET. She reported that both Csr. Schachter and Csr. Safer have this in common with regard to their clients: both Mr. Atkinson and Mr. Kipnis have fewer charges against them, and both counselors have argued that there was no evidence against their respective clients. Csr. Safer pointed out that Mr. Kipnis made no money from the alleged scheme. The prosecution has admitted as much, but they did not stipulate it in their opening statement. Csr. Safer has pointed out other deviancies from the prosecution's opening address, and has listed several points upon which reasonable doubt could be based. He's not finished with his closing argument yet.

According to Ms. Lang, the prosecution's case is turning on the government's credibility regarding the interpretation of the documents introduced into evidence. Mr. Radler’s credibility wasn’t exactly stellar, but Csr. Safer has said that his testimony is irrelevant to his client's innocence because nothing Mr. Radler had said on the stand implicated Mr. Kipnis. (The same point was made by Csr. Schachter about Mr. Atkinson.) The government's best chance is building on the failure of the transactions under indictment to pass the “smell test.”

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An article webbed by CNews.ca has a review of the first part of Csr. Schachter's closing address, with some reaction to it from trial followers.

The Toronto Star has a satiric look at the trial itself, through a faux-Shakespearian scene where David Radler meets Conrad Black outside the courtroom. It's based on Act IV, Scene 3 of Julius Caesar.

Douglas Bell, in today's top-stories entry in the Toronto Life Conrad Black Trial blog, expresses a sense of relief now that the trial's end is imminent.

CBC News' "Inside Media" has an open forum for questions about the Conrad Black trial in preparation for an online chat question-and-answer session, scheduled for this Wednesday at 1 PM, with correspondent Mike Hornbrook.

There's also a discussion scheduled in the Toronto Life Conrad Black trial, according to Douglas Bell. Tomorrow at 5 PM ET, there will be a three-way discussion amongst the pundits writing for that blog, and there is another one, open to the public, tentatively scheduled for Thurdsay.

MSN Money has webbed an FT.com feature report on the jury's upcoming deliberations, with the two contending theories that they'll be mulling over. It describes Julie Ruder's delivery of the prosecution's closing argument as deft, and carries a prediction from Hugh Totten that Conrad Black will be found guilty of some of the charges he faces.

Also, Mark Steyn, in his Maclean's Conrad Black trial blog, has gone into the "Paragraph B" matter in greater depth. He report on Csr. Safer saying to the court that the so-called 'template' arrangement, for the non-compete payments to be split 75%/25% between Hollinger International and Hollinger Inc., was being distributed by Morgan Stanley to potential buyers of Hollinger Int'l properties. Mr. Steyn also presents the rationale for the template: "[A]s Safer pointed out, there's no point signing an agreement preventing Conrad Black as chairman of Hollinger International poaching your advertising executive and moving him to Chicago if he can simply put on his Hollinger Inc hat and poach him with impunity. In the real world in which real business is conducted, an agreement that binds International but not Inc would be worthless." Mr. Steyn concludes by building on Csr. Safer's argument that the government is simply trying to criminalize the application of business judgement.