Wrapping It Up (The Final Duel)

Mark Steyn, once again, has the first details on the rest of Ron Safer's closing argument for Mark Kipnis. The excerpt he has reported on features Csr. Safer turning an objection from Eric Sussman to his client's advantage. After Csr. Sussman objected to a statement on the grounds that Csr. Safer was speculating on what his client knew or didn't know, Csr. Safer shot back: "'Exactly! That's the very point I'm making." The room fell around laughing, and defence counsel jabbed his finger at the chief prosecutor: 'THEY have the burden of proof. A tie doesn't go to the government.'"

Another excerpt reported on by Mr. Steyn features Csr. Safer debunking the characterization by Julie Ruder that Hollinger Inc. was a mere holding company by raising the point that Hollinger International itself was a mere holding company; the operator company was American Publishing. In addition, Csr. Safer pointed out two Chicago-based companies, one of them being the Harris Bank, are Canadian-owned, implying that Canadian ownership does not itself imply shady dealings.

BNN has gotten its hands on an advance copy of Judge St. Eve's instructions to the jury. The total of them makes up a document 77 pages in length. One mentioned on the noon newscast was an instruction to disregard any considerations based on race, sex, religion, (etc.) and national origin. The other, more specific, instruction mentioned on the newscast tells the jury to consider David Radler's guilty plea irrelevant to the guilt of any of the four defendants.

Mr. Steyn has reported that Csr. Safer is finished. He compliments the counsellor for tying together disjointed bits of testimony that were largely considered ignorable at the time when they were elicited. (It's quite the flipside to the general praise for Julie Ruder, who was lauded for displaying the same organizational skill. As of now, Csr. Sussman has a final opportunity to show that same skill.)

Romina Maurino's report, as webbed by 680 News, recaps the main theme of Csr. Safer's closing address: "'This whole scheme, he doesn't understand, he doesn't know the motive for... He's an outsider. He is not in top management. He is not in decision-making... He is not in the social circle. He is an employee and he's happy.'" It also notes that the proceedings had gone quickly in the morning.

Amanda Lang, in a BNN interview aired at 1:54 PM ET, had these highlights of the prosecution rebuttal, as delivered by Eric Sussman. He said that each defendant had a “moment of truth.” Ms. Lang passed along three of them. For Conrad Black, it occurred when he signed an agreement not to “compete with himself,” and also when he inserted himself into CanWest non-compete agreement. For Jack Boultbee, it took place when he accepted a $450,000 payment for a non-compete agreement even though the buyers of the associated newspaper property didn't know of him. For Mark Kipnis, it occurred when he, after waiting for permission to write some names on a wire transfer payment and not getting them, wrote those names himself on it. Csr. Sussman also said that the enforcability of the non-compete contracts is irrelevant; the point is the buyers didn’t want them. He also said that David Radler was peripheral to the overall case. Additionally, he made the point that that the defense lawyers, as a group, have called 13 government witnesses liars, and itemized their names.

Ms. Lang also reported that it's still possible that Judge St. Eve will have to deliver the instructions to the jury tomorrow morning.

Moving back to Csr. Safer's closing address, Mr. Steyn has reported on the capstone to it: there was only one transaction, out of all of them, that was culpable - the original American Trucker sale. "Radler and Todd Vogt ('and where's Todd Vogt?' asked Counsellor Safer, noting the government's conspicuous avoidance of one of the key figures in the Radler operation) transferred $2 million from the Trucker sale from International to Inc with no non-compete, no Audit Committee approval, no nothing. 'He had no way out on American Trucker,' said Safer. 'None... On American Trucker alone, he's going to jail for more than 29 months.'" In other words, the only crime committed was the one fraud count that Mr. Radler pleaded guilty to, and Mr. Radler alone was reponsible for it, according to Csr. Safer. In order to minimize his punishment, Mr. Radler had cut a deal which left most of his wealth intact.

A Reuters report, written by Andrew Stern, starts with this part of Csr. Safer's closing address: "Directors who oversaw Conrad Black's former publishing empire approved everything that was put in front of them including the millions of dollars prosecutors claim was stolen, a lawyer for one of the former media baron's co-defendants told jurors on Tuesday." In other words, if the oversight body had been satisfied, then presumptively there was no crime.

Paul Waldie, with some help from the Canadian Press, has more details on Csr. Sussman's closing address, as webbed by the Globe and Mail. According to his report, the prosecutor stressed the allegation that the defendants had lied, and also averred: "'You don't need to believe a single word from David Radler to convict them.' He said [further that] the defence had not addressed the testimony of the buyers of Hollinger newspapers who said they did not want non-competition agreements with the men."

The Bloomberg report, written by Andrew Harris and Joe Schneider, contains the background on the prosecution characterization of one non-compete agreement as Conrad Black "'paying himself not to compete with himself.'" The deal in question took place in "March 1999 [when] Hollinger agreed to sell $43.7 million of newspapers to Horizon Publications, a Marion, Illinois company in which Black and Radler owned substantial interests, the government says. The noncompete agreement in that deal meant they were paying themselves not to compete with themselves, the government says. Sussman was referring to the Horizon deal today." It also quotes Hugh Totten, who opined that the closing arguments were too long.

The Chicago Tribune has webbed an Associated Press report that covers both Csr. Safer's finish and Csr. Sussman's rebuttal. From the latter, it quotes a batback from Csr. Sussman about David Radler being the star witness: "Lead prosecutor Eric Sussman said as he began his rebuttal to the defense that he would not apologize for calling David Radler as a witness [despite his tattered word and conduct]... 'We didn't pick the star witness,' he said. Wheeling around, he then pointed at the defendants one by one and said 'Conrad Black picked him .... Peter Atkinson picked him .... John Boultbee picked him.'" The report also notes Mr. Black's reaction to being pointed to at that moment.

A rewritten version of the Reuters report starts off with more details from the rebuttal: "Prosecutors trying to seal their case on Tuesday against former media baron Conrad Black and his associates told jurors about to decide their fate that defense lawyers failed to refute the core fraud charges against the four men." It further relates that Csr. Sussman accused the defense of dancing around the central part of the case: "'Not a single one faced the issue head-on. Why were these men allowed to take money and then lie about it?'"

Other excerpts are in an updated report by Ms. Maurino, as webbed by Canada East Online. It relates that Csr. Sussman claimed that "Black and his three co-accused 'lied to the shareholders... while they ignored their duties.'" Near its end, there are excerpts from the upcoming instructions to the jury. Two examples: "'You are to decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all, as well as what weight, if any, you give to the testimony of each witness... In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this 'inference.' A jury is allowed to make reasonable inferences. Any inferences you make must be reasonable and must be based on the evidence in the case.'"

BNN aired a segment on "Squeeze Play" with two guests, former prosecutors Bill Loller and Terry Sullivan, to discuss how the prosecution has done in the rebuttal, as wll as the significance of the instructions to the jury. Csr. Loller said that those instructions are not just a formality. The jurors pay close attention to the wordings. The instructions also specify what is to be disregarded.

With respect to the charges, Csr. Sullivan said that the defense “did a lot of damage” to the prosecution’s case. Csr. Sussman tried to distance the prosecution from Mr. Radler. The jury may not notice, but the prosecution has in fact backpedaled a lot. They're still trying to drag in lifestyle issues, esp. regarding the moving of the boxes, asking why a rich man would move them himself. As a result of this concentration, the jurors may be anesthetized to the numbers and figures.

Csr. Loller pointed to the fact that no victims were ever presented. The jury may wonder where they are. He also opined that the prosecution may have hoped for defense disunity when they decided to try the four together. If so, then they were disappointed. Csr. Sullivan agreed, and noted that the prosecution did mention that the jury did not have to convict all of them in order to convict one of them. He also noted the same thing that Mark Steyn had noted earlier: three jurors wanted to stay late so as to get the instructions over with.

Csr. Loller ended his part by saying that the case wound up being more complex and ambiguous than anticipated, and opined that the lack of victims presented may hurt the prosecution's chances. Csr. Sullivan noted, though, that Conrad Black must be acquitted entirely to avoid serious time, thanks to the pre-existing sentencing guildelines for crimes of this nature.

Another BNN report, once again with Amanda Lang reporting, was aired at 6:40 PM. She said that Csr. Sussman did a “nimble job” in his rebuttal. She added to her earlier report by noting that Sussman had said that all thirteen different witnesses had to have lied in order for the defense's arguments to be credible. Regarding the instructions to the jury, she reported that they will not be given today, and are scheduled for tomorrow. The ostrich instruction is good for the prosecutiuon, but Judge St. Eve has added one that's good for the defense: a note that the Securities and Exchange Commission has the power to retrospectively authorize certain items.

Despite the expectation that the instructions would be given to the jury today, the rebuttal wasn't even finished, according to a CP report webbed by 570 News. Csr. Sussman will finsh tomorrow, after which the instructions will be given. An AP summary report, webbed by WQAD.com, also carries the expectation that the jurors will get the instructions tomorrow.

Finally, a report from BBC News has a summarization of the entire case, plus the defense's overall stand.

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If you're a Murdoch-watcher as well, you should be interested in this item: BNN announced on its noon newscast that News Corp and the Bancroft family have reached a preliminary agreement regarding the former's attempted takeover of Dow-Jones in the area of protecting editorial independence. A related Reuters news report on this story is here.

To move back to a focus on the trial itself, Douglas Bell, in his regular top-stories beat for the Toronto Life Conrad Black trial, has picked up on the distancing of Mr. Atkinson and Mr. Kipnis from the other two defendants.

Unusually for Mr. Steyn, his opening comment on Csr. Sussman's rebuttal observes the prosecutor's mutedness. Mr. Steyn has speculated that the assistant U.S. attorney was ordered to deliver it calmly. "I think he's been told not to be too cocky, and as a result he's sounding listless... An odd start."

Also, the live discussion at the Toronto Life Conrad Black trial blog was started. The transcript for it can be read here.