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Maclean’s recently invited six lawyers and law professors who have been following the Conrad Black trial in Chicago to weigh the evidence and come to a verdict, based on a majority ruling. An edited transcript of our mock jury’s deliberations appears in June 25 issue of Maclean's. Below is the full, unabridged version of the discussion.

The mock jurors for this case are:

James Morton A partner with the firm Steinberg Morton Hope & Israel LLP in Toronto, a certified specialist and lecturer in litigation, and president of the Canadian Bar Association.

Peter Henning A professor of law at Wayne State University, a former prosecutor with the U.S. Dept. of Justice, and former senior attorney with the Securities & Exchange Commission.

Hugh Totten Senior partner with the Chicago office of Perkins Coie, he has tried cases across the U.S. in areas including non-compete agreements and intellectual property matters.

Steve Skurka A partner with the Toronto law firm of Skurka Spina Cugliari LLP, a certified specialist in criminal litigation, and the legal analyst covering the Conrad Black trial for CTV.

Ross Albert A partner at Morris, Manning & Martin in Atlanta specializing in securities litigation, a former prosecutor with the U.S. Dept. of Justice, and a veteran of the U.S. SEC.

Kirby D. Behre A former federal prosecutor and trial lawyer who has practised criminal and civil law for the past 21 years, specializing in securities fraud, antitrust violations and contract fraud.

Maclean's editors Steve Maich(MO)and Mark Stevenson(MS)moderated the discussion.

MO: Ross, if you could just give us your general impressions of the prosecution and the defence?

RA: My general impression is I think the prosecution has done a good job. They’re burdened with the weight of having their key witness, David Radler, an admitted liar. That is not unusual for cases like this. I think when you have... oftentimes the key to prosecuting these big scheme cases is to have the testimony of an insider, and so I think the defence did an excellent job of diminishing Mr. Radler’s credibility on cross-examination. They’re still left with the spectacle of Mr. Radler being Lord Black’s closest business associate for 30 years. I thought before the trial that the government’s case would be strong. I’m standing by the prediction that there’ll be convictions. I’m perhaps a little less certain of that than before the trial. The recent testimony regarding the outside auditor’s disclosures to the audit committee I think has been helpful for the defence, but I think on the whole the government has fulfilled its pledge to the jury about what the evidence would show. I think, as to the other defendants, there’s a major question of whether the government will get convictions for Mr. Kipnis, and it may have been a strategic error including him because he is a much more sympathetic figure, I think, than the other defendants, and there have been probably some failures of proof in regard to their case against him.

MO: Okay. Kirby Behre, what are your broad impressions, prosecution and defence?

KB: Well, it seems to me that there’s clearly evidence here from which a jury can conclude beyond reasonable doubt that Black looted the company and the other charges. I mean, the question is whether the jury’s going to interpret and credit the evidence in that way. Clearly, having somebody like Radler testify – like in many of these cases – is absolutely key for the government, number one, and two, potentially devastating for the defence. It sounds as though the defence beat him off pretty good on cross, he was on the stand a long time, but of course you almost get a boomerang effect if you beat up on him too much because he’s Black’s long-term business partner and if you make Radler out to be a liar and a snake, a common thief, you run the risk that some of that’s going to rub back off on Black and they interpret it that way. So, what surprises me in this case is how much, really, is not in dispute about the conduct. I mean, there’s what seems to be the favourite thing over the last five or six years that you have colourful examples of a lavish lifestyle that in part the company funded, and the argument is, by the government, that they shouldn’t have – so you’ve got the birthday party and the Dom Perignon and all those things – but beyond that you also have, it seems to me, the undisputed nature of the non-compete agreements. It’s undisputed that he profited directly, and others profited directly from those proceeds. So, when you put this all in perspective and look and see what’s not in dispute it really boils down to a couple of key issues, including did he have the company’s permission, for lack of a better description, to receive those funds? And the evidence on that would be what did the audit committee know and what did they approve, and it sounds like on that front the government’s made a credible case that the audit committee was in the dark and that the company was in the dark and therefore he didn’t have permission to do this. So I think on a host of fronts, even though this has gone on for months and months, when you step back and look at it there’s not a whole lot in dispute, and on those issues that there is dispute about the government’s raised credible evidence to support those facts that they need to get a conviction. That doesn’t mean... and we can surmise and put ourselves in the place of the jury, I suppose, to some extent, but what none of us can do – unless people on this call were present in court – is gauge the credibility of the witnesses [cough], and decide whether people like Radler, on the balance, comes off as somebody who you hold your nose and believe or whether he’s somebody you hold your nose and you toss out the window because you don’t like what he says because you don’t credit him.

MO: Right.

KB: As for the other defendants I think, you know, they may end up benefiting – which is often the case in these types of cases – they may benefit from the disparity of attention and evidence against them versus Black. I mean, we all suspect the juries and we know that juries at times will not necessarily split the verdict, here, in terms of the counts, but oftentimes they’ll spit with regard to defendants, and the focus sometimes gets to be so great and the evidence perhaps so colourful against one defendant that down the road it could be a situation where the forgotten defendants end up walking even though, as a practical matter, there wasn’t a great difference in terms of what evidence was shown.

MO: Okay. Peter Henning?

PH: The prosecution started by... in its opening statement talked about how they were going to show a theft, and I think their theft was going to be trying to show a fast shuffle, here – or, if you will, a three card monte game – where Black and his people showed a little bit but not enough. I wonder whether they’ve been able to establish that, especially the lead counts here are for mail and wire fraud – in fact, that’s the cornerstone of the RICO count also – and I don’t know if they established that this was a company that wasn’t run very well, that had a terrible audit committee, and when you have all three audit committee members announcing that they didn’t read the documents I think it would be Big Jim Thompson became Big Skim at some point. And so you have a problem with a company that’s not very well run, and certainly Black was shown to be a jerk, and most likely a pig – although I don’t think anyone ever disputed that – I don’t know whether that’s a crime, and so what the case... I had expected the government to do a better job before Radler in establishing its case and not having to rely on Radler. What they’re left with – and Kirby made this point very well – that what you’re left with is, is the jury going to believe Radler or not, and was Radler enough to convict Black, and then of course is Radler going to be enough to convict the other defendants? But certainly, at least from what I’ve read about what Radler said about Kipnis I think Kipnis has a very good chance of a not-guilty verdict because Radler seem to say that Kipnis wasn’t involved. Boultbee and Atkinson...? It raises the question. I guess the second point for me is the defence strategy was to hang tough, and essentially the other three defendants put their lives – or their freedom, at least – in the hands of Black, and so I do think there’s a good chance that they will rise or fall together. I would leave aside Kipnis: I think Kipnis will be found not guilty. But it’s an interesting strategy that maybe the government was playing prisoner’s dilemma here, hoping that one of the three other defendants would break and help them out, and that didn’t happen. And so you do have a defence strategy where I do think they’re going to rise and fall together.

MO: All right. James Morton?

JM: Yes, I tend to agree that Kipnis is in a different category from the other defendants and far more likely to be acquitted than the other defendants. My sense, though, is that the prosecution’s case is not perhaps as strong as some of the other panellists think. My read of the case is that the prosecution has established a lavish lifestyle, a fancy language from Black, and perhaps a sense of entitlement, but they have not established that there was anything other than sloppy business practices, and perhaps some type of sense that the company’s mine and I can do with it what I want. When you look at the juror who was excused who was talking to media today, I think, she commented that she felt that at most the prosecution had shown that Lord Black and the other defendants were, I think her words were, really sloppy in their business deals. The witnesses called by the defendants to this point, talking about market rate, market value, the fellow who was on the other day, Ryan – Patrick Ryan – who suggested that the audit committee might well know about the payments, also struck me as being fairly important witnesses. My sense is that the prosecution promised too much and didn’t deliver. By the same token, the defence did not demolish Radler the way they seemed to expect they would. Radler came across, to my mind, with a core of credibility. So, I wouldn’t predict but on balance I think that the prosecution oversold their case.

MO: All right. Steve Skurka?

SS: Okay. Well, I had the advantage of being in the courtroom for much of the trial, and I would say that there’s still one unknown factor about Radler and that’s the judge’s charge, because remember there’s no supporting or confirming evidence for an admitted liar who’s an accomplice with a vested interest in protecting a deal. And what will the judge say about Radler? Will she caution the jury about accepting his evidence? Will she say it’s dangerous to accept his evidence without confirming evidence? So that’s still an unknown feature of the case. The second point I would make is that you can’t look at Mark Kipnis in isolation. He’s an overwhelmingly sympathetic figure in the trial. In my view it was a mistake to include him, and he will be acquitted. But what does it say about David Radler? Radler, having Kipnis sign so many of the documents, exploited Kipnis. So it speaks to the rest of the case and not just Mark Kipnis. The third point I would make is that I disagree that the audit committee was kept in the dark, because if that was the case they would all be convicted on the non-compete charges, and bear in mind Kipnis did not receive any of the non-compete money. But the reverse is true, indeed there was a bright flashlight shining on the non-competes for the audit committee, and these were very sophisticated people – including a former U.S. attorney who was the chair of the committee – and I think the best thing that the defence has established is to show not just that they read it but now there’s unchallenged evidence that the chair of the committee – James Thompson – approved the non-competes, and I think that that really puts to rest any notion that the government’s going to succeed on the non-compete counts against any of the defendants at all.

RA: I know Mr. Skurka was present in the courtroom for much of the trial, but I think that the government may have at least a good chance of rebutting that on the distinction between the audit committee approving disclosure, the description of those non-compete payments and public documents filed with the United States Securities and Exchange Commission, rather than approving the actual payments themselves.

SS: Now, I call that a distinction without a difference, so that’s where we differ, Ross.

RA: Okay.

MO: All right. Hugh Totten?

HT: Like Steve, I’ve spent a lot of time in the courtroom. I haven’t spent as much time as Steve has. I tend to believe and have the opinion that the prosecution had a harder time proving this case than they thought going in. They hit some bumps in the road that, particularly with Radler and Thompson, that I think were challenging for them. But overall my belief is that they’ve done a pretty good job of dealing with the hand that they were dealt. You know, their proof consists basically, on the non-compete, of David Radler’s testimony – as we’ve all mentioned – but it also consists of the unchallenged, so far, testimony of the newspaper buyers which back up Radler’s testimony in critical respects. Importantly, they all say they didn’t ask for these individuals to sign these con-competes, they didn’t even know who these people were, and it was done after the price had already been struck. So, you know, that’s going to give the prosecution the ability to argue, “You may not like David Radler but you can believe what he has to say when it’s buttressed by other uncontested testimony.” So Radler was definitely abused on cross-examination but he certainly wasn’t demolished. And with respect to the... I’ve always had a problem with the issue of these disclosures. They were sort of trotted under Jim Thompson’s nose time and again, and he was definitely sliced and diced on cross-examination and by the end of the testimony could have walked out of the courtroom underneath the courtroom door. But those disclosures simply disclose the payments that were made, but not the truth of why they were being made. Had they been full disclosures they would have said, “These payments are being made even though no buyer requested it. We insert ourselves in here.” That would be a true disclosure. So, I’ve always believed that the disclosures themselves, if you had 11 of them in a row, actually became part of the fraud, so I think the prosecution on the non-competes has done a pretty good job. I think the evidence with respect to the perks – the Bora Bora trip, the town home and flat in New York, and the birthday party – is a mess. I think there the prosecution has done far less of a job in putting that together, and I would expect that although it has clearly a prejudicial effect I don’t know that those are going to carry the day. I also would agree, by the way, with everybody’s statements about Mark Kipnis, here. This is really a case that involves two plea agreements, one that was taken and one that wasn’t taken. The one that was taken was David Radler’s, and the one that wasn’t taken was the one that was offered by the prosecution to Kipnis, and I think that that has come back in many instances to hurt the prosecution. Ron Safer has called, for example, the witness that he called last week that said that Jim Thompson must have known about these payments on the audit committee. Well, you know, that’s sort of a boomerang on this prosecution keeping Mark Kipnis in the case. It hurt them.

MO: Okay. I just want to ask a couple of questions about strategy and broad impressions and please, anyone feel free to answer them. Since we just talked about the perks, obviously there’s been a lot of testimony about an extravagant lifestyle. I wonder if you feel that that testimony helps or hurts the prosecution with a jury in Chicago.

JM: My sense is that it won’t help the prosecution – it probably won’t hurt them – but the jury, to my mind – and this is particularly brought out by what this ex-juror said – will not be upset that the people in charge of Hollinger were living a very good lifestyle if they were entitled to live it. In other words, the very high compensation, the parties, the fancy toilets, are not a problem unless it’s from stolen money. So the lavish lifestyle standing alone will get them nothing. Clearly they tried to paint in that way for the purpose of making the jury dislike and feel alienated from the defendants, but my sense is that that’s not going to help them.

MO: Anyone else?

RA: I served as a special assistant U.S. attorney for some years, and we did two trials down here of defendants who ran a corrupt brokerage firm, and we fought tooth and nail with the defence and were largely successful in getting in evidence of lavish perks and lifestyles. I agree with Mr. Morton that there is a distinction to be made between if you’ve earned the money and you spend it lavishly there’s nothing wrong with that, but there’s certainly enough here... I think it will ultimately hurt the defence that they were unsuccessful in getting the judge to exclude much of that evidence and testimony.

SS: I just want to add one unique feature of the perks that perhaps distinguishing it from other corporate fraud cases. With respect to all three of the alleged perks, Conrad Black invested his own money, whether it was renovating the apartment, whether it was allocating a percentage that he would pay individually and not the company, and I think that will help them very much with the jury in the end, as well.

MO: The fact that he picked up part of the tab in each case?

SS: Exactly.

MO: Okay.

HT: I’d like to add one thing on the perks evidence.

MO: Sure.

HT: You know, I think the perks evidence is not nearly as important as what I’ll call the other prejudicial evidence, particularly the musings that were allowed to come in where Conrad Black basically said he wanted to hose down the shareholders and blow their asses off. I think that was extremely prejudicial testimony. I’m not sure what evidentiary value it had the time except to show that he had a complete disregard for the shareholders’ best interests despite his fiduciary duty.

KB: I agree on a couple of fronts. One is that his colourful, sometimes arrogant musings, as you put it, are very prejudicial in the sense that they end up causing a jury to not like someone individually, even though they didn’t hear from him directly, much like the perks issue. And while I think, if it’s accurate that he contributed in each of the three instances, I suppose that does help mitigate some of that damage, but the bottom line is that in this environment where we as a society become so anti-big-paycheque-CEO and where somebody like this has a party that even those of us on this call probably wouldn’t dream of having, it certainly doesn’t help you curry any sympathy or favour with the jury, and perhaps a hell of a lot worse than that. So, when you couple the perks – even with the proviso that if he paid for some of it it makes it look like he was doing it on the up and up – and those kind of arrogant gotcha points that he’s made – I think it was in at least one e-mail but also verbally – I think it just creates an atmosphere where even though he’s supposed to get the benefit of the doubt it’s very, very likely, with a history like this where he’s so detached from the common man, that he doesn’t get the benefit of the doubt and it inures horribly to his detriment.

PH: The only thing I would add is this is the one instance – or these are the main instances – where Black’s fingerprints are on it. His fingerprints really are not that much on the non-competes except through Radler, and so it cuts off a defence... putting these counts in cut off a defence of, “He’s just a big-picture CEO,” they may still try this, “but he wasn’t involved in the day-to-day.” So, from a strategic point of view, that may be what the prosecutors were looking at. If they lose the counts it’s not any great problem for them if it does cut him off from a defence.

MO: Okay. One thing I wanted to ask, too – since we’re talking about the e-mails – the issue of the videotape that was introduced of him removing the boxes. It seems to me that might also fall under that same category of somewhat prejudicial evidence that comes out. How do you think the videotape of a CEO like Conrad Black carrying those boxes out played?

JM: My sense that it may well be a significant problem for the defence. It depends how they interpret the video. The video can be looked at as being extremely negative, going to the obstruction of justice. To a jury it can also be seen simply as consistent with Black’s general attitude, not intending to do anything wrong but being royally annoyed at the circumstances. His assistant did not really help much on that point.

HT: If you go by how much time the defence has spent on their case in these different areas, clearly they think that they’ve got a problem with this obstruction charge, in part because of the terrible testimony from the secretary, and also in part because of the way it just looks, having a film of this guy removing stuff. But there’s a question, I think, in an average jury’s mind, “But why would Conrad Black show up on a weekend, when he’s got a butler and a driver and an assistant, and then decide that he’s going to all of a sudden comply with his landlord’s wishes to evict the premises?” There’s something about that that doesn’t strike an average juror as being reasonable.

SS: I think the obstruct justice charge is one charge where the defence is going to have to rely on a burden of proof, because I tend to agree with James you can draw it two ways. Remember, he was being evicted from the premises, and there is a suggestion that many of the documents were already in the hands of the SEC. But what I think is important to note is that there are going to be two components of direct evidence in relation to Conrad Black that the jury is going to take back to their deliberation, and one is this tape, which obviously does not look very good, where they see Conrad Black, but they’re also going to have the audiotapes of the two shareholder meetings in 2002 and 2003 where they’re going to hear Conrad Black speak. So they actually do hear Conrad Black at this trial, they do hear his explanations of the problems from the irate shareholders, and when I listened to the tape my view was that it was essentially a surrogate cross-examination of Conrad Black which he was able to respond to fairly effectively. So I think you can’t look at just that one videotape in isolation, I think you also have to remember that you do have those audiotapes as well.

MS: We won’t belabour the impressions point but Conrad Black is not expected to be on the stand at any point, is that...? If you’re a juror...

SS: That’s absolutely true, absolutely true.

MS: Do you want to hear... does that make a difference? Does the jury want to hear from him? Or, if you’re a juror, how does that affect your impression of things?

SS: Well, I think the tapes of the shareholder meetings allow the jury to hear from him and allow them to hear his explanations, so in some sense that may have been a mistake for the prosecution to introduce when it was fairly clear that Conrad Black would likely not take the stand. I think, in the ordinary case, it hurts you. We all know that, as lawyers, it’s not a good thing, but I’m not so sure it’s problematic, particularly if none of the other co-defendants – including Mark Kipnis as the most sympathetic defendant – doesn’t take the witness stand. I think if one of them did it would probably be more harmful.

KB: I think that, for whatever reason, there’s always this huge gulf between what criminal defence lawyers believe is in the best interests of their client – which is typically not to testify – and what jurors want and expect, and it’s overwhelmingly that they want and expect the defendant to testify. So there’s this huge gulf between the two camps, and this case kind of falls in that rubric. But the issue really is sometimes, all of us are probably called and asked, “Is it a mistake not to put defendant x, y or z on the stand?” and the issue is until you know what that individual would tell you behind a closed door under attorney-client privilege about what he knew and what he did it’s very difficult to second guess. And in this case, number two – as I said before – a lot of the facts are not disputed, and if he takes the stand, on cross-examination the government’s going to walk him through all of those facts that aren’t disputed, narrow this case down, and really focus it for the jury in a way that probably won’t happen now that he doesn’t testify. So, while I think the jury does want to hear from him, like every jury in every case, it’s hard to say that it was a mistake for the defence not to call him, and in fact, based on what they know and we don’t know, it could be the best decision they ever made.

RA: I just wanted to comment on that a little bit. I think it’s overwhelmingly true that jurors want to hear from a defendant straight from the horse’s mouth, but the problem is I would never second guess Lord Black’s defence counsel, even more so than in the regular case, because I think once you put a defendant like Lord Black on the stand the case becomes all about his testimony, and I personally think that he would not likely make a good witness, particularly on cross-examination, because I think he’d be a very hard witness to control, and he projects in his media interviews and his press statements such a clear sense of entitlement that any able prosecutor would relish the thought of cross-examination. And we have also the history in the megatrials so far that certainly didn’t help the Enron defendants to testify in their own behalf, or Bernie Ebbers of WorldCom. Of course the exception here is Richard Scrushy in HealthSouth did not testify, but I think there were a lot of special factors at issue there. In a sense, many observers thought that Mr. Scrushy got a hometown verdict that could not... in a way that Lord Black could not get in Chicago because it’s not his home town.

JM: I agree that in general a jury is going to want to hear from a defendant, and no matter how much you can tell them that you don’t have to testify they’re still going to be thinking in the back of their mind, “If you have nothing to hide why don’t you talk?” Having said that, in a case like this, particularly where it’s arguable that the prosecution hasn’t made its case, it’s so dangerous to put a defendant on the stand because the defendant could then make the prosecution’s case. I also agree the fact that none of the defendants seem to be likely to testify is good for all the defendants. If one of them testified and one didn’t that would strengthen the jury’s question, “What’s so-and-so trying to hide?”

MO: But it sounds like, from all of you, if you’re sitting as a juror – separating yourself from the legal strategy questions – it’s not a stroke in the defence’s favour that their man chose not to speak.

JM: Absolutely not. It may be that it won’t impact at all, it may be a neutral, but if anything it helps the prosecution.

HT: I’ll take it a step further. To go back to Steve Skurka’s point on the tape recordings, what Conrad Black said on the those tape recordings is not what his defence has been saying in this case, and I think that’s why those tape recordings, in part, have been so important. I mean, in this case what they have said is their theory is that all of these deals were deals done by David Radler acting on his own and he’s the one that committed these crimes. That is not what they said in those tapes played at the shareholders’. That creates a real dilemma for the defence if they decide to testify.

MO: All right. I just wanted to... in my own notes here we’ve kind of separated out the main charges into the charges dealing with fraud, that mostly centre around non-competes and whether or not they were legitimate in the first place, whether they were properly approved and whether they were properly disclosed; the money-laundering charges were dropped; then there were the racketeering charges; and the obstruction of justice charges. So if I could just go around the table – maybe we’ll go in opposite order this time and start with Hugh Totten – Hugh, could you just tell me are you thinking guilty on all charges, guilty on some charges – and if so, which ones – or not guilty, if you were sitting in the jury box yourself, based on what you know of the case?

HT: Guilty on some charges for three of the four defendants, not guilty on any charge for Mark Kipnis.

MO: Okay, and on the three of the four, which charges do you see them as guilty?

HT: I think they go down on the non-competes, and I think that Conrad Black goes down on the obstruction charge.

MO: Okay. Can you just to me – I know it may feel like you’re repeating – can you talk to me a little bit about why? Let’s start with Kipnis. Why not guilty on any charges for Kipnis?

HT: Well, Kipnis would have to be guilty of engaging in a conspiracy by telepathy, because there’s not a shred of evidence that he either benefited from any of the allegedly fraudulent conduct, or that he participated actively in the scheme other than carrying out his boss’s orders to draft papers and sign them for people. There’s just nothing that ties Mark Kipnis to any of the criminal conduct in this case.

MO: And the others?

HT: Well, with respect to Black, Boultbee and Atkinson, I think the greatest failing in their case is they’ve done nothing to counter the testimony of the newspaper buyers which established beyond doubt that the transactions were always improper and that the buyers never requested the individual defendants to sign non-competes. Second, they blame Radler for cooking up a scheme independently, and there’s some inconsistency there, in my mind – and maybe it’s just me – but if this is in fact a problem and it was something that David Radler cooked up then I haven’t seen him turn back any of this money, which I think is telling. Third, I think these defendants, certainly Black, took money for non-competes even though he was a buyer in at least one case, and I’m not sure how you can maintain intellectual credibility when you’re the buyer promising not to compete against yourself. And I think the amounts... with respect to the other defendants, Boultbee and Atkinson, the amounts in these cases are so staggering – $14 million in one transaction and I think even higher in some others – their complete silence and lack of observation when they’re paid these amounts sort of defies belief. I mean, doing nothing to investigate why they were being paid these amounts just seems sort of incredible, I think, to the average juror.

MO: Okay. So the only charges you would acquit on for Black, Boultbee and Atkinson are racketeering, then?

HT: Yes.

MO: And why is that? Just overreaching on those charges?

HT: I actually haven’t analyzed it in terms of wire fraud versus racketeering. I’ve sort of done it by subject matter – which is non-competes versus the perks – by defendant.

MO: Fair enough. Steve Skurka?

SS: Okay. Well, first of all I don’t think the racketeering charge will make it to the jury, I think the judge will take it away. I’ll give my prediction and I’ll just add three additional features to what I’ve already said, and I’ll repeat myself. I say not guilty for all defendants on all counts. The three additional features are there’s no human face on a victim in this case, there’s dissimilar fact evidence before a jury in terms of the CanWest deal where it’s established and agreed by the prosecution that Conrad Black properly received a substantial non-compete payment, and I think it was a mistake for the prosecution to initially include that as part of the fraud case which they then withdrew. It went from an $84 million fraud to a $60 million fraud. And then this speaks directly to Hugh’s point – which he’s made a couple of times – I think the defence has established that it was perfectly proper for the seller to request a non-compete and that there were tax advantages for it and it was fairly common at the time. So those are my comments.

MO: Okay. James Morton?

JM: I agree that Mark Kipnis is acquitted on all charges. My sense is that the remaining defendants will likely be acquitted on all charges. If there is going to be convictions I tend to think it’ll be Lord Black on the obstruct justice.

MO: Okay, you’re hedging a little bit there. If you’re a juror, if you’re the person voting, do you convict Black on obstruction of justice?

JM: If I’m the juror voting? No.

MO: No? And can you tell me why?

JM: My sense is that of the significant charges the prosecution has not established that they were in fact illegal. There’s a fuzz around the charges. In terms of the obstruct justice, that really becomes an interpretation point, what was Black doing, and the other participants have made good points, you know, why would someone like that go in and move his own boxes. But it is interpretable in two ways. And the burden of proof, remember, is criminal standard – which means that you have to exclude any other reasonable explanation – and, to my mind, the prosecution hasn’t gotten them.

MO: Right. Peter Henning?

PH: On the mail fraud – and I would divide them up unto the perks and the non-competes – I believe Black will be convicted on at least some of the counts. I think the jury may well divide up the non-competes and may convict on some rather than others. On the perks, I don’t think they will convict. I don’t think it’s clear enough. And because of that, also, I don’t think the RICO count will stand. RICO is a much more difficult count to convict on simply because you have to establish the enterprise and the pattern of racketeering activity, and those additional elements I think are going to be too hard for the government to establish. With regard to the tax counts, having just read them again, those strike me... I have no clue where they’ll come out on that. I don’t know. They come across as very technical and not having the company make its filings. I guess there’s a possibility but I have my doubts on it whether they would be able to do it. I’m not sure exactly why they’re in there except, perhaps, again to show a general pattern of misconduct. Boultbee and Atkinson, I think, may be convicted along with Black. I don’t believe Kipnis will be convicted.

MO: Okay. And what about the obstruction of justice charge, Peter?

PH: I would... I think the jury will convict Black on that simply... understandably the videotape could be interpreted either way but it does look very odd, and this is rare in an obstruction case where you have this taking place. I think there’s enough there that the jury would find, based on the other damning evidence, that here’s one place where Black’s fingerprints are all over it, and he was there for no good reason other than to keep himself away from being charged.

MO: Okay. And racketing, the overall racketing/RICO charges?

PH: Not guilty.

MO: Not guilty, okay. And just so I’m clear, when you say that you’re not really having any clue on the tax counts, if you were a juror that means there’s doubts and you would acquit on the tax charges?

PH: Well, you know, I’m going to go a step earlier. I don’t understand them. It may well be that the jury will. Maybe the jury will understand it, I just don’t. Those were the charges that struck me as the furthest away from the core misconduct here, and I guess my estimate that the jury will find them too far afield.

MO: Okay. So, just so I’m clear, acquitting on the fraud charges related to the perks, probably convicting on some of the fraud charges related to the non-competes, not guilty on racketeering, likely not guilty on the tax. Kipnis is not guilty but Black is guilty of obstruction of justice.

PH: How’s that for straddling the fence? In other words, I could never be second-guessed.

JM: Exactly, but that’s a realistic verdict, absolutely.

SS: Remember it, that’s all.

MO: Kirby?

KB: The way I come out on this is Black is clearly going down. The idea that he would walk on everything, I think it’s just virtually impossible that that would be the case. What he goes down on I think is everything except for the racketeering. The reason I say that is I’m surprised they’re even charging it. That was big in vogue many years ago, both civilly and criminally to charge RICO. It’s really gone way down, and the reason prosecutors rarely charge it is because they almost never get convictions out of it. It’s the same reason civil parties don’t charge it anymore, because they never get any bang for the buck. So, I think that he probably gets off on that. The obstruction count, particularly for him, just looks horrible. A guy of his stature and his income level toting his own boxes out of the building after hours certainly has a look to it that is hard to explain, and beyond that it sounds as though the secretary who was brought in to kind of save the day didn’t necessarily do that. So, he was in a hole to start with just for the charges, it looked bad, it looks worse, and it’s hard to see how he gets out of that one. Fraud counts, I really think it’s the same thing. I mean, the reason that the charge is mail fraud, wire fraud in these circumstances is because they’re just so much easier to prove than some more convoluted crime, and here we’ve got a situation where not only on the perk front but on the non-competes it flies in the face of logic that a party engaged in a corporate transaction with a corporation is going to be making payments directly to an executive at the company, so it’s kind of suspect on its face. It doesn’t sound like they dispute receipt of those funds, it’s more along the lines of the old parking ticket, you know, admit-with-explanation, “Well, yeah, I got the money, but it was okay with my company and the company approved it.” I don’t think he’s going to be able to get away on that, and I suspect others will face the same fate. For the remaining defendants, I think it’ll probably be something less – perhaps far less – than Black gets convicted of. Again, I think what ends up happening in these cases is you get a situation where a jury says, “Yeah, who’s the bad actor here? It’s Black,” and then they start to look for opportunities to what they think at least is to cut other defendants a break. Of course, in a lot of these situations, even though a jury thinks that by convicting on one instead of x number of counts they’re giving a defendant a break, under the federal sentencing guideline that’s actually not often the case. But I think what you’re going to see are kind of token convictions for the rest of them and Conrad Black getting virtually everything guilty except for the racketeering.

MO: Okay, so you think even Kipnis might go down on certain charges?

KB: Well, I think it’s kind of a corollary to the disparity of evidence belief, and that is that when you throw somebody into the mix with other defendants there’s a rub-off effect, and it’s just the reason that we have case severed that, somebody like Conrad Black, I’m sure his co-defendants would have probably argued earlier that they should have been severed from him because the evidence is disparate and far greater with him. The reason you want to sever is because of the disparity of the evidence and the potential for prejudicial rub-off effect on that defendant. I think that in this case they get looked at, at least fleetingly, as a collective body, and that as a result jurors aren’t really all that adept at farming out and truly looking at each defendant individually, so I fear that that will be his fate.

MO: Okay. And Ross Albert?

RA: I’ll return to one of the first things I said, is I think Mark Kipnis is going to be acquitted of everything. I think, if I’m on the prosecution and given the way the evidence has played out I’m probably at least slightly second-guessing the decision to indict him along with the other defendants. I think, unless the jury believes David Radler’s testimony, in large part the government’s case is in deep trouble, and when you have your prosecution star witness essentially vouching for one of the defendants I think that indicates that Mr. Kipnis is going to be acquitted of all charges, and that’s something where even if the jury does convict I think there’s a serious chance that the judge could reverse that verdict, grant a new trial. I don’t think he’s going grant a motion for a deferred... directed verdict but let the jury decide so there’s a complete record for what would be an inevitable appeal unless Mr. Kipnis acquitted. As to Lord Black, I agree with what some of the others said about the RICO count. It is out of fashion, mostly, nowadays. It is very difficult to get juries to convict on racketeering charges when there is a legitimate business there and there is at least a semblance of legal excuse for what the defendants did, so again that’s something that the prosecution might have thought about beforehand because I don’t think it really added much to their case and is something that is probably the most questionable charge. I think the jury convicts on obstruction. I don’t think the defence will be adequately able to explain or have the alternative explanations accepted by the jury for why someone of Lord Black’s stature and income level is toting his own boxes in the face of court orders. Tax charges I’m not sure about. I think those could go either way. I think the remaining defendants have mostly tied their star and their chances to Lord Black, so I think they’re going to be convicted along with Lord Black. And I think it was Mr. Morton who was commenting earlier about the reports in the media that were out today about the excused juror, and she predicted that there would be an acquittal, and she talked about sloppy record keeping. She was only part of the jury, I think, for three weeks, but something else she said I thought was worthy of note, that Lord Black’s lead defence counsel, Mr. Greenspan, was not making a favourable impression in the jury room, and I think it’s very hard when you have an unsympathetic defendant like Lord Black and an unsympathetic defence counsel. I don’t question anything Mr. Greenspan did – I think he had a difficult task in front of him – but the fact that he was apparently, according to this one juror, actively irritating the jury, I don’t think that bodes well at all for Lord Black’s chances.

MO: Okay. The one thing I didn’t here there, Ross, was your take on the fraud charges, mail and wire fraud related to the non-competes and the disclosure thereof.

RA: I think there’ll be convictions on this.

MO: Convictions, all right. Anything else you’d like to add?

MS: I just want to ask one question about the non-competes. For those of us in Canada who are sort of well used to way that Mr. Black conducts business and conducts himself, and for whom sort of none of the perks or any of that sort of thing is a surprise or particularly interesting or damning, I think the impression that a lot of people who are reading about it in Canada are getting is effectively this. The big money was moving on the non-competes. That was the big alleged scheme. As soon as somebody gets on the stand and says, “Yeah, we knew about it and signed off about it,” why isn’t it over at that point? Do you know what I mean? It doesn’t seem to be doing him much good that Jim Thompson, Kravis and various others on the audit committee knew all about them. None of you folks are particularly impressed by that.

JM: The audit committee can know about things, and the audit committee can even approve them, but if there’s still criminal theft of property of the company all that does is bring the audit committee into the conspiracy. So the approval of the audit committee goes a long way to help the defendants, but if what they did was in effect stealing from the company it doesn’t absolve them of that fact.

SS: But James, they’re not unidicted co-conspirators.

JM: Absolutely.

SS: And that’s an important distinction to make.

JM: No, agreed. Agreed.

PH: I think something to note here is think the government’s theory is that Black and his crew – if you can call them that after The Sopranos yesterday- they were showing 30 or 40 per cent of the truth. They said enough to get away with it. This is not... they weren’t knocking over 7-11’s – although maybe they should have – but instead they were in there saying just enough to get away with it, and so it’s do you have disclosure. There are different degrees of disclosure, as President Clinton was able to instruct us on.

SS: I want to make one point. I think that the prosecution would have been helped a great deal if the audit committee members had been forthright and said, “Look, we knew about it and we made some mistakes,” and I think it assists the defence tremendously that each of the three of them who’s testified – Burt, Kravis and Thompson – claimed to know nothing about it despite the fact that collectively there would have been 33 representations of the American non-compete payments in documents that they saw. So I think the fact that they weren’t forthright and truthful inures to the defendant, the defence.

MO: Okay. Anyone want to add anything else before we wrap up?

SS: Yeah, I just want to ask something of my American colleagues that mystifies me. Is it normal practice to have a motion for directed verdict rule on after the defence evidence is completed as opposed to before you call on the defendants to present their defence?

PH: You can bring the motion at the close of the government’s case and then just... you need to renew it at the end of the defence case in order to preserve... evidence.

SS:...would you normally have a ruling on the motion? Because in Canada you wouldn’t call on the defence until there was a ruling. That’s why it struck me as a bit odd, and I’m just wondering if it’s typical in this case or not.

PH: Under Rule 29 the judge can rule on it or reserve, but if the judge reserves ruling on it then – in this case – she would have to rule on it at the end of the case but only based on the government’s evidence in its case in chief. So it can be reserved or the judge can reject it. A lot of it depends on the judge’s own predilections.

SS: Okay, thank-you. That’s helpful.

JM: One thing I would throw in there is that the judge in this case seems to have run the trial with eminent competence and common sense. This case did not descend into anything like the circus which people were afraid it was going to, and that may well also have some impact on the jury because they’re going to look to the judge and her charge with perhaps more respect than they would if the case had descended into something more circus-like.

KB: And just to add to that, James, I’ve watched these jurors and I know there’s been a lot of commentary about the fact can they grasp it, is it too complex, is this a blue collar jury. That’s nonsense. These are good people, they’re attentive, they come from 9:00 to 5:00 every day, they sit through that evidence, they’re always on time, and I’ve just been really impressed with the jurors.

JM: Yeah. Whatever the decision’s going to be it’s going to be a careful one, sensible one, it’s not going to be arbitrary or based purely on emotion.

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