When I noticed that Conrad Black had thanked and acknowledged thousands of people in his new book and I wasn't one of them, I sensed that I probably wasn't going to like it.
Conrad Black and I were first-year classmates at Osgoode Hall Law School in 1965. I didn't really know him at that time, but over the years we have met at different places. On one of those occasions, I stopped to say hello to him in a restaurant. We chatted and at one point he said to me, “You'd better leave, I don't want people to think I need a criminal lawyer.” I didn't realize it at the time, but he wasn't joking.
Years later, Conrad got into the difficulties that ultimately resulted in his criminal trial in Chicago. Early on, he retained me as an adviser. I helped him find a U.S. criminal lawyer, the celebrated Brendan Sullivan, whom he hired. It was understood that if he was charged, Mr. Sullivan would be his lawyer. As that day approached, Mr. Sullivan told Conrad he needed $25-million in addition to the many millions he had already received. That was the first time in my life I ever regretted not being an American lawyer.
When Mr. Sullivan made his request, Conrad came to me and said, “I want you to be my lawyer in Chicago.” I'm Canadian; my practice is here. But Conrad pushed strenuously for me to take the matter on.
I took the case on the condition that I hire a very experienced American criminal lawyer to join the team, as I was not an expert in U.S. law, practice or procedure. In fact, there was a formal hearing in court where it was impressed upon Conrad that I would rely on my American counterpart for the law. That's how I got involved in the case.
When Black pays
There is an old joke. A man walks into a bar, orders a beer, and announces, “When McTavish drinks, everybody drinks!” The crowd cheers him as the bartender refills their glasses. McTavish drains his pint, orders another, announces again, “When McTavish drinks, everybody drinks!” Again, cheerful applause. He drains this pint too, puts $10 on the bar and heads out, calling over his shoulder, “When McTavish pays, everybody pays!”
That, in essence, is Conrad Black's position in his book. Some clients want others to pay with them. They want – need – to lay blame elsewhere and point the finger at everybody. And the prime target for frightened, angry men and women when things don't go as they expect is frequently their lawyer.
I am sorry to see Conrad Black behaving in this way.
There is a great deal of the record that should be set straight, but I'm going to limit myself to a few issues.
There is no doubt that the prosecutorial process in the United States is a toxic, predatory environment. The charges against Conrad were massively overloaded by very aggressive, ambitious prosecutors and heavy-handed, even unconstitutional, procedures.
I hired quintessential Chicago criminal lawyers Eddie Genson and Marc Martin. They have been involved in some of the most important criminal cases in the federal courthouse in Chicago for 25 years. Recently, the former governor of Illinois hired Mr. Genson. He is a serious and formidable lawyer. Mr. Martin is rightfully regarded as one of the finest legal minds in criminal law.
In his book, Conrad wrote that he doubted Mr. Genson had ever represented a respectable client and then said of me: Respectable clients “were not his specialty.”
Conrad added that we have a misplaced reverence for the hoods and lowlifes he believes we represent. It is sad to observe this reckless lashing out at his lawyers and those charged with presumably less lofty offences than fraud. Eddie Genson and I have had the privilege over our careers to act for an enormous number of decent, honourable people, just as wrongly charged as Conrad. He has to know that these petty insults are beneath him.
A problem with clients
Conrad's flawed account of his own trial is a reminder of how seldom an accused person actually grasps what is going on in court. Most defendants in a criminal trial realize that they shouldn't expect to understand the process. That is what hiring experienced criminal counsel is all about.
During a cross-examination, for example, there are moments when you are flying high and moments when a witness digs in, fights back hard, feels himself on surer ground. Such was the case when I cross-examined Conrad's partner, David Radler, who had cut a deal and was the heart of the prosecution case going in.
Conrad suggests that on my first day of cross-examining Mr. Radler, I was slow, belaboured my points, and appeared weak and off my game. He suggests that this was for medical reasons. It wasn't. There's a simpler reason: Mr. Radler beat me that day. It happens. I've been beaten at stages of a cross-examination by worse men than David Radler. However, the ultimate test of a cross-examination is the end result. When I began to shatter Mr. Radler's evidence later, it was by using his errors and inconsistencies from earlier testimony, when overconfidence and carelessness emerged as he thought he was winning.
In the book, Conrad has an amusing tendency to exalt my performances in court and in pretrial processes, then spin around and attack me with the venom he uses for his adversaries. I am reported to be both a ponderous water buffalo, and nimble as a cougar in destroying witnesses. I'm also a crocodile. I may yet audition for The Lion King.
When it comes to Mr. Radler, this key witness was ultimately so completely erased by cross-examination, in Conrad's description, as to become a non-issue. Mr. Radler, whom Conrad describes as the “rat” (to my water buffalo-cougar-crocodile hybrid), was dismantled to the point where, he writes, the cocksure prosecutors, earlier described as so much younger and more nimble than his own slow, past-it, lawyers, hung their heads like “chastened schoolchildren” and avoided meeting the jurors' eyes.
At trial's end, the prosecutor, in her closing, suggested that the jury should simply ignore Mr. Radler's evidence. It is difficult for a defence lawyer to do better than that. Had the jury believed Mr. Radler, Conrad would have been convicted of every charge and would have spent the rest of his life in prison.
Conrad wrote in his book, “Radler was smeared over the floor and walls.” Flattering as this is, I'm really not that violent.
He wrote elsewhere that I destroyed Marie-Josée Kravis of the Hollinger board, to the point of making her look contemptible. As for former Illinois governor Jim Thompson, also on the Hollinger board, testifying against Conrad, I apparently “tore him limb from limb” and “dragged him like an un-housetrained dog to the site of his many incontinences.”
Despite all this, Conrad still suggests that I was deficient for “health reasons” in conducting his defence. I do take insulin for diabetes. I can, if not careful, end up with low blood sugar, a reaction familiar to every diabetic, whether they go to school, raise children, play hockey, perform surgery, practise law or write for newspapers.
If Conrad Black wants all diabetics excluded from gainful employment, there's a larger issue to discuss than we have space for here.
My health is fine. I had the same health when I cross-examined all the witnesses in this trial.
Eddie Genson and I both saw this trial for what it was – the destruction of the Hollinger audit committee and the turncoat David Radler. Beat them and – in any fair setting – we win.
The trial took place in 2007, in a climate of media frenzy, post-Enron, Tyco, WorldCom, where convictions for corporate fraud were almost a forgone conclusion. Yet at the end, Conrad wrote that he “won nine of the counts and lost four.” He added that a report by a committee at Hollinger International accusing him of heading a “$500-million kleptocracy, all of this had gone over the side.”
He writes, “I won three-quarters of the charges the government started with and 90 per cent in terms of potential financial downside.”
So, on the one hand, he sees his “victory” against ferocious overreaching by the American system, and yet he is lashing out at not just his enemies, but his friends and advocates. Others must suffer. Everybody pays.
In the trial, it was clear that a relatively new, overarching concept, referred to as “honest services,” had been the problem. That's why he was convicted. Many courts in the United States would not have even put the “honest services” statute to the jury, but Illinois did. (The law in America was subsequently changed as a result of this case.)
We vigorously objected to the use of this statute – and that was critical. There would have been no appeal on that ground if we had not objected to putting that statute to the jury. That's how appellate law works; that's the work of trial counsel. Lay the groundwork. It's boring for observers. It is water buffalo stuff, but in the end it wins or loses cases.
Critical errors in judgment
So when the trial ended with the major allegations dismissed and the seeds sown for an appellate victory, I urged Conrad to characterize the result as a substantial defeat for the prosecution. I suggested that we hold a press conference to express satisfaction with the partial victory we had achieved and our expectation of complete vindication on appeal.
To my deep regret, he would not permit me to do so. Instead, the prosecutors, who had been shattered by the verdict, met with a media consultant, and they held their press conference. They announced that they had won the case, were ecstatic with the result and would seek a 40-year sentence – as if they had won a conviction on every charge. Their spin doctor earned his fee.
At the time, I didn't understand why Conrad Black didn't want me to do what needed to be done: shape the climate in which the trial judge would do her sentencing. I think that, reading this book, I finally do. He writes that when I said to him the verdict amounted to a vindication, what I really meant was that it was a victory for me, personally. Of all that he has written, this is in some ways the saddest passage. My statement to him was a sincere response to the verdict. Conrad's book has finally made it clear to me how much confusion underlay his refusal to allow that press conference.
But the most inappropriate statement about his counsel is elsewhere in the book and needs to be addressed.
Conrad writes that during the trial he often dined with journalist Mark Steyn. In 2007, Mr. Steyn wrote an article in Maclean's magazine about Conrad's trial, in which he claimed that just before the case went to the jury, Eddie Genson and I demanded an additional million “bucks” each. Mr. Steyn wrote that “a day or two before closing arguments … is no time to pick a quarrel with your lawyers … so Conrad paid up.” The clear implication was that we had effectively extorted our client at a moment of vulnerability.
I drafted a letter to Maclean's, pointing out that this allegation by Mr. Steyn was a “complete fiction.” As a courtesy, I sent the draft to Conrad by e-mail. He responded the same day. He wrote: “I promptly, after the article came out, e-mailed Mark Steyn that his allegation against both of you of extortion was unfounded. There were some top-ups to the retainers toward the end of the trial, but there was nothing wrong with that. … I think you are right to rebut the allegation. If asked, I will support your version of this. Best wishes, Conrad.”
With Conrad's written agreement, I felt confident that this ugly suggestion of extortion was put to rest.
But now it has come back. Amazingly, Conrad wrote in his book that “Mark Steyn produced a fierce diatribe against Greenspan and Genson in Maclean's, highlighting their lifting of 2.2 million dollars from me just as the trial was ending to pad their retainers.”
So he repeats the allegation of extortion that he told Mr. Steyn was “unfounded,” but hides behind Mr. Steyn and repackages his original fiction. There may be nothing quite so shabby in the book.
I am accustomed to clients blaming their lawyers for their woes. All criminal lawyers deal with that. But this speaks to integrity and ethics, the underpinning of a career. A response was required as a matter of principle.
Edward Greenspan is a Toronto defence lawyer.