The Verdict: Plumbing The Instructions

Tonight's episode of The Verdict had a segment discussing the Conrad Black trial which was divided into two parts. The first, with CTV reporter David Akin, discussed the prosecutorial rebuttal; the second, with former prosecutor Pat Woodward and trial-watcher Hugh Totten, analyzed the advance copy of the jury instructions.

Mr. Akin said that Eric Sussman took up some of the morning and most of the afternoon for the rebuttal; he has one more hour scheduled, which he asked for and got. Mr. Akin doesn’t know why Csr. Sussman is dragging it out beyond the total of two hours he was expected to take. It could be that he wants to elaborate, as much as possible, on those prosecution-favorable parts of the judge’s instructions, such as the ostrich instruction, to the jury. As far as Conrad Black's demeanor in court was concerned, he was happy enough when Ron Safer was up, but wasn't when Csr. Sussman was up. When pointed to by the assistant U.S. attorney, according to Mr. Akin, Mr. Black looked "black". He had to face the ‘thief’ accusation.

Right after, the focus turned to Csr. Woodward's and Csr. Totten's analyses. The former believes that the government did rather well in the jurors' instructions. He mentioned the definitions of “honest services,” “good faith,” and the ostrich instruction as support for that conclusion.

Csr. Totten believes that the list of instructions is fairly standard. The defense should benefit from the instruction to treat David Radler's testimony with “caution and great care,” but will not benefit from the “reasonably foreseeable” criterion related to the obstruction-of- justice charge. It’s a wider standard than "knowledge" would have been. The ostrich instruction will impact Mr. Black’s two-chiefs theory, but it could hurt the other defendants more. Csr. Woodward noted that the caution-and-care standard won’t necessarily impact Mr. Radler’s testimony. It’ll just make the jurors more careful.

Csr. Totten brought up the prosecution’s point about the testimony of the four buyers verbatim, which the prosecution has claimed went unchallenged. After being asked by Ms. Todd about about the fact that contract was signed, he (assuming that she was referring to the non-compete contracts and not the overall sales contracts themselves) repeated the prosecution’s point that the enforcibility of the contract says nothing about whether or not it was consented to. Csr. Woodward finished up the analysis by saying that the contract with the self-dealing was the diciest for the defense.