Globe and Mail Update Published on Monday, Jul. 16, 2007 1:10PM EDT Last updated on Friday, Apr. 03, 2009 10:02AM EDT
Conrad Black has been convicted on four criminal charges, including obstruction of justice and three counts of mail fraud. He was found not guilty on nine other charges. He now faces the prospect of as much as 35 years in jail.
As Globe and Mail reporter Jacquie McNish wrote Saturday in her analysis Say it loud: Lord Black is too proud : "The one person Lord Black seems genetically incapable of blaming is himself. For the sad truth is, he was his own worst enemy. Had he simply folded his losing hand when shareholders of Hollinger International Inc. first called him a 'thief' in 2002, Lord Black would probably not be facing the humiliation of prison."
But Lord Black remains unrepentant as The Globe's Paul Waldie wrote today in his article Defiant Black vows to fight on : "We move on to the next phase in this long war," Lord Black said in a weekend e-mail to The Globe. "We got rid of most of [the charges], and expect to get rid of the rest on appeal."
Ms. McNish and Mr. Waldie were online earlier today to take your questions on their articles. Your questions and their answers appear at the bottom of this page.
Ms. McNish is a senior writer with The Globe and Mail. She is the winner of numerous awards including two national newspaper awards and the 2005 National Business Book Award for Wrong Way: The Fall of Conrad Black, which she co-authored with Sinclair Stewart.
Ms. McNish was also part of a team awarded a national newspaper award in May for stories about the Bank of Nova Scotia and Bank of Montreal merger discussions and attempts to gain government approval.
She is also the author of the critically-acclaimed bestseller The Big Score: Robert Friedland, Inco and the Voisey's Bay Hustle.
Mr. Waldie is a business reporter who has been following the Conrad Black saga for three years and who sat through every day of the trial in Chicago.
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Eclectic Observer, Vancouver: Why does the media engage in sensationalist reporting by suggesting that Conrad Black could face 35 years in prison?
While technically correct if given the maximum consecutive sentences, the reality is that as a first offender there is no way that he will be given the maximum. Moreover, the probability that the sentences of the four counts will be made consecutive are about zero and none.
Paul Waldie: Sentencing in the U.S. is very formula-driven. Judges have some leeway but they also have to abide by the formula. There is a complicated point system which means that Conrad Black won't likely get the maximum on any of the counts, but he will receive several years. The most optimistic scenerio is around 10 years.
Jean Baillargeon, Toronto: I have heard a number of commentators say that the jury in this case reached a "compromise verdict." As I understand it, this means that the jury members could not agree on all the charges, so they struck a middle ground by finding Black guilty on only some of them.
My questions are: Do you agree with this analysis? And supposing that this theory is plausible, should it make us less confident that justice was done in this case?
Paul Waldie: Yes, I think that is true and it's an issue with all jury trials.
From our discussions with one juror, they lumped all of the defendants together on each charge. They did not seem to look at each defendant individually and assess his role in each count.
That meant that while most observers and even some jurors did not feel that Mark Kipnis should be convicted, he was anyway.
Steven Davis, Montreal: How can Black be convicted of obstruction of justice in the U.S. for an act that he committed in Canada?
Paul Waldie: That is a really good point and it is something that Lord Black's lawyers pounded away at during the trial.
The issue came down to whether Lord Black was obstructing investigations by U.S. authorities. That included a grand jury probe, an investigation by the U.S. Attorney's office and an investigation by the Securities and Exchange Commission. All three were underway when Lord Black took the boxes.
The real problem for Lord Black was that his secretary, Joan Maida, did not give any compelling testimony during the trial as to why the boxes were taken. She was contradictory, vague and combative.
Her testimony, the fact that there were three U.S. investigations and the security camera video hurt Lord Black on this count.
Let's Be Prudent: Last fall, the G&M interviewed Conrad Black over lunch. In the article, I recall he stated that when acquitted, he would start legal action against all those who had defamed/libelled him. Throughout the trial, he made many critical comments about the prosecution's case.
To what extent do you think the nature and extent of Lord Black's vengeful and critical comments will affect his sentence?
Jacquie McNish: Unfortunately for Lord Black, I think his continued defiance about the charges and his increasingly reckless angry statements against his U.S. prosecutors will make things harder for him.
Remorse from convicted felons can influence sentencing and the fact that Lord Black seems unwilling or unable to show any regret for his actions may work against him when Judge St. Eves delivers her sentence in November.
Paul Waldie: We asked Patrick Fitzgerald, the U.S. Attorney, that very question.
There had been some speculation that Lord Black's comments about the prosecutors and David Radler's testimony could be used against him during sentencing. But Mr. Fitzgerald said they would have no impact and that prosecutors have just ignored them.
Gerry O'Brien, Ottawa: Do you believe that Black's unbounded arrogance proved to be his own undoing?
Jacquie McNish: Yes. That's the short answer.
The long and more nuanced answer is that the same single-minded sense of destiny that drove Lord Black to build the remains of the old Argus conglomerate into one of the world's largest newspaper companies, also blinded him to the corporate governance movement that eventually overpowered him.
I truly believe that if he had bowed to his rebelling shareholders in 2002, he could have avoided this criminal trial and verdict.
Stephen Cwalinski: Now that Conrad Black has been convicted on three counts of mail fraud, what amount, if any, will he be required to pay back to his former companies and in fines? [This would be based on an unsuccessful appeal of the convictions.] What are repercussions for the directors of the various boards involved?
Jacquie McNish: Stephen, that is the $500-million question.
Lord Black is facing a wave of litigation from the Securities and Exchange Commission, Hollinger International, Hollinger Inc. and a variety of class-action lawsuits.
The fact that his former executive David Radler has already agreed to pay $28-million to settle SEC allegations can be used as a benchmark for the type of settlement Lord Black may be facing for securities allegations alone.
Yvonne Wackernagel, Woodville, N.S.: With laws having been tightened [recently in several countries] to force directors to be more personally responsible, and with [several recent court decisions against corporate executives], corporate responsibility had improved.
But do you not think that more people now will think twice before accepting directorships, particularly if they are financially well-endowed?
Jacquie McNish: Yvonne, I think this is one of the most important questions flowing from the trial.
Conrad Black and his executives were not the only people who were on trial in this case. The spotlight was also on the conduct of Black's directors, lawyers and auditors who failed on several occasions to question or sound the alarm about a number of transactions that were at the heart of the case.
The Black trial painted a picture of a dysfunctional board of directors who "skimmed" key documents and never questioned deals that screamed for scrutiny.
Hollinger International's board was handpicked by Lord Black to include aging government celebrities such as Henry Kissinger and Richard Perle and they operated more like a political salon than public company board. These directors trusted Lord Black and almost never challenged him.
The embarassment and lawsuits they have suffered as a result of this case is the final nail in the coffin to compliant boards.
Directors at WorldCom, for example, have had to dig into their own pockets to compensate shareholders.
As result of these consequences, only strong-minded directors who understand their legal obligations are going to be inclined to take directorships on public companies.
Jeff Pellarin, Toronto: Can you explain what "mail fraud" is, and why it is a separate crime in the U.S.? Isn't "regular fraud" bad enough? Why the elevated status?
Paul Waldie: This is an old piece of leglislation that has become the norm in these white-collar cases. Mail and wire fraud date back to laws from the 1920s or 30s and they are so broad that almost any alleged crime can be prosecuted.
What prosecutors tend to do is outline an alleged scheme in an indictment and then the actual charges are based on documents that were sent through the mail or even faxed.
At the end of the Black trial, the proseuction had to provide jurors with a list of the documents that had actually been sent through the mail to back up each individual count.
Sounds archaic in this day and age, but that's how it works.
Greg Randall, Ottawa: Does this verdict mean that Conrad Black will be removed from the [British] peerage and/or membership in the Queen's Privy Council of Canada?
Paul Waldie: It's actually pretty hard to lose both titles.
It takes an act of the British Parliament for a Lord to lose his or her peerage and that has happened only a couple of times.
Even Jeffrey Archer, the famed author, managed to keep his peerage after spending time in jail. However, I am told that it is unlkely Lord Black would want to set foot in the House of Lords if his conviction holds up. There seems to be a gentlemen's agreement that might not be appropriate.
I'm not as certain about the Privy Council designation, but I also suspect it is difficult to be stripped of that title.
Cat Cat, Burlington, Ont.: Most of the commentary after Friday's verdict surrounds Lord Black's intentions to appeal.
Do you know if the U.S. prosecutors have any intention of appealing the charges that the Lord Black of Crossharbour has been found "not guilty" on?
Paul Waldie: Actually they can't. Once a jury has found someone not guilty that's the end of it. Prosecutors can appeal sentencing though, so that might be something to watch.
Emma Hawthorne: Given that David Radler has agreed under pressure to repay $28-million but the court found only $2.3-million or so to be owing, will the Radler payment be reduced? What about the Radler deal? In hindsight, did he sell out his business associates for a very bad bargain?
Jacquie McNish: Emma, the David Radler $28-million payment was to settle a separate set of allegations.
The payment is one of the largest ever made to SEC, which is now expected to press ahead with similar allegations against Lord Black.
The SEC has alleged that Lord Black and others violated securities laws by using a private company to buy newspapers from Hollinger International at steep discounts, including paying $1 for one paper. The SEC also alleges Lord Black and the others diverted $2.5-million (U.S.) of Hollinger money into a venture capital fund affiliated with the former executives.
Jason Schmidt, Saskatoon: If/when Lord Black is sentenced to prison, what kind of prison will he serve his sentence in?
Paul Waldie: Since he was tried in a federal court, he could be sent to any federal jail across the U.S.
I suspect that since he is a first-time offender and that this is a non-violent crime, he would likely be sent to a minimum- or medium-security prison.
The next issue will be whether he can serve his time in Canada.
You will recall that David Radler, his former business partner who has pleaded guilty, is expected to apply to serve his 29 months in Canada and prosecutors have said they will not oppose his request.
It is too soon to speculate if Lord Black would make a similar request, but if he does it will be interesting to see if prosecutors put up a fight.
Jasmine Francis, Halifax: Will Barbara Amiel stick with Conrad if he goes to jail?
Jacquie McNish: I think the fact that she walked through the media gauntlet almost every day of the four-month trial, endured endless attacks on her character by the press and was the first to write him a note seconds after his conviction tells us all we need to know about her commitment to her husband.
John Robertson, Winnipeg: Did the jurors explain why they found Mr. Black "not guilty" on the other charges?
Paul Waldie: Not in any great detail. But they indicated that the evidence on the other counts just didn't stack up.
They convicted him and the other defendants on the most obvious transaction — the deal in which they created a non-competition agreement with a Hollinger subsidiary as a way of paying themselves a tax-free bonus (non-compete payments were not taxable in Canada at the time).
The other deals were more complicated and the defence lawyers did a very good job of sowing reasonable doubt in the minds of jurors.
Jean Davidson, Montreal: What's the status of Mr. Black's former companies? Are they still solvent?
Jacquie McNish: Not good. Lord Black's private Toronto holding company Ravelston is in receivership.
Ravelston's core asset is its voting control of Hollinger Inc. in Toronto and Hollinger International in Chicago. These two Hollingers have seen tens of millions of dollars of cash drained by legal, accounting and forensic investigation fees. Hollinger Inc. has said it is running short of cash. Hollinger International, which is now known as Sun-Times Media Group, is seeking a buyer, which may now be easier to arrange in the wake of last week's verdict.
Both companies are suing Lord Black for his alleged misdeeds and if these actions are successful, it is unlikely that he would realize any gains from the sale of Sun-Times Media.
Percy Page: When do you expect the appeal process to begin? Will it happen before the sentencing in November? Is it possible the sentencing could be delayed while the appeal courts decide if the guilty verdicts should stand?
Paul Waldie: Lord Black's lawyers indicated in court on Friday that he has already hired lawyers to handle his appeal.
I suspect it will get underway shortly but like any appeal it will likely take a while.
One thing to keep in mind is that the track record of success on appeals is very low for defendants in criminal cases.
One reason is that U.S. President George Bush has stacked these appeal courts with judges who are generally tough on crime.
Ruth Johnson, Calgary: I realize many books have been written on this subject. But why have the last few years been full of so much news about corporate fraud? What happened that caused so many high-profile cases? Can we rest assured that good corporate governance is now the rule?
Jacquie McNish: Ruth, I believe the rash of corporate fraud reflects the ease with which unscupulous executives were able to take advantage of poorly-governed public companies.
There are always going to be unscrupulous people in any organization. But at Enron, WorldCom, Tyco and Hollinger, we learned they were enabled by unquestioning boards, lawyers and other guardians who had legal obligations to protect the interests of shareholders.
Governments have responded with tough governance rules, embodied in the Sarbanes Oxley legislation introduced in the United States.
While these laws have substantially increased corporate accountability, I think the sad reality is that the markets have less confidence in publicly traded companies.
At the same time, many senior executives at public companies feel they are being strangled by the tough requirements of new governance laws.
This tension is driving powerful investment funds to reallocate their money to direct takeovers of public companies, a trend that is seeing waves of companies exit from public listings on stock markets.
Jim Sheppard, Executive Editor, globeandmail.com: Jacquie, Paul, thanks very much for taking the time today to answer questions from the readers of globeandmail.com. I'm sure they appreciated your insight and analysis. Any last thoughts?
Jacquie McNish: Even though the verdict was handed down three days ago, I, like a lot of people who have followed Conrad Black's career for a long time, find myself still adjusting to the reality of his conviction.
His future would be far less grim if he had chosen to settle, rather than fight his rebelling shareholders back in 2002
Now, even faced with the humiliation of an almost certain prison sentence, I find it inexplicable that he continues to fight. Contrition would serve him so much better as he heads for sentencing in November.
Jim Sheppard, Executive Editor, globeandmail.com: To our readers, thank you for your strong interest in this case. We are, of course, sorry that we couldn't get in the alloted hour to all of the almost 100 questions you submitted today for Ms. McNish and Mr. Waldie.
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