Tonight's episode of The Verdict had a full segment discussing Mark Kipnis, his likely fate - acquittal - and the effect of the shrivelling of the prosecution's case against him on the entire Conrad Black trial. The two guests were Steve Skurka and Jacob Frenkel, a former prosecutor turned defense attorney.
Csr. Skurka began by noting that Ron Safer’s closing address made the prosecution look bad. Mr. Kipnis' counsel made two important points: one, there was no profit for Mr. Kipnis from any of the suspicious transactions; two, Mr. Kipnis had created the paper trail, which is behavior that is inconsistent with a guilty fraudster.
When asked by Ms. Todd why the prosecution had put Mr. Kipnis on trial at all, Csr. Frenkel answered, he's on trial because of the “kitchen-sink approach.” The prosecution aims to find the “gatekeeper,” and believed that Mr. Kipnis was that. Csr. Skurka observed that the prosecution made a “huge mistake” by including Mr. Kipnis as a defendant because Csr. Safer’s defense points do overlap to include the other defendants, including Conrad Black himself. Csr. Frenkel concurred; an outright innocent defendant makes acquittal of the others more likely.
Ms. Todd asked if this tag-team approach could backfire on Mr. Black. Csr Frenkel replied that it could. The best verdict for the prosecution in this kind of case would be a “mixed verdict,” because it shows lack of railroading by the prosecution. This point, though, does not apply to defendants being acquitted by the judge, which Mr. Kipnis may be.
The topic then shifted to the prosecution's rebuttal. Csr. Skurka offered this forecast: the prosecution may point out an inconsistency between defense characterizations of Mr. Radler and his testimony. Two defendants need his credibility impugned, but two defendants based part of their defense on his testimony (more specifically, what he did not testify to.) But, the defense has managed to put the government on trial in a sense, and the prosecutors do look mean-spirited for including Mr. Kipnis among the defendants. When asked by Ms. Todd what the prosecution should do now, Csr. Frenkel suggested that they stick to the case presented, and focus on why the prosecution has met the burden of proof. It may be a good risk to back off from Mr. Kipnis, for triage purposes.
Csr. Skurka called attention to a probable “series of objections” from defense attorneys. The prosecution has to confine itself to rebuttal, so there's much greater scope for objections than there was in the closing argument.
Ms. Todd then asked: should the defendants have been charged individually? Csr. Frenkel noted that this question is the big one for the Monday-morning-quarterback circuit. The government took a risk by lumping them together; in retrospect, they may have blown it.
Ms. Todd also got the last word in this segment. After asking Csr. Skurka what Mr. Kipnis should do if all charges against him are withdrawn, she translated his answer into: “sue!”
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Please note none of defendants testified. Even though the judge will say it was their right and must not be taken into account the jury will wonder, particularly with regard to Kipnis. Not testifying was a risk for his defense that could backfire. (ie. the ostrich instruction)
We'll see. It really isn't over 'til its over, and none of us are mind readers.
Given the consensus that's developed, though, a conviction for Mr. Kipnis would be a shocker. I couldn't even guess how the legal pundits would react to the news.
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