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What's up Conrad's sleeve?

On the eve of his trial, a supremely confident Lord Black has the prosecution in his crosshairs, says Margaret Wente

Globe and Mail Update

For someone who goes on trial next month for fraud, money laundering and racketeering, Conrad Black strikes you as serene and supremely confident. Lately, he has been finishing a book on Richard Nixon (another brilliant man who was reviled, then rehabilitated) and defending the honour of his wife, by means of a libel notice he is suspected of having drafted himself. The notice states that contrary to the malicious accusations in a certain recent book about them, the Plaintiff's wife is not a grasping, hectoring, slatternly, extravagant, shrill, domineering, vulgar, obsessively materialistic harridan.

Mr. Black hasn't lost his unique way with words. He's never looked better in his life. And he's not at all shy about his legal troubles. If you are too discreet to bring up the subject of next month's trial, then he will. He will tell you that he is impatient to demolish, pulverize, crushhis enemies. He'll talk your ear off long into the night about his certain vindication. You get the sense that he is eager -- even desperate -- for the world to hear his story. After he wears you out, he'll probably go home and buttonhole the butler.

Why is this man so confident? Is he deluded? Or could Conrad really walk?

Yes, he could. If you are among the numerous Canadians who long to see him dressed in prison stripes, you may be cruelly disappointed.

"Anyone who dares to predict the outcome doesn't understand the nature of these types of proceedings," says Jacob Frenkel, one of the U.S.'s leading experts on major financial fraud. (Mr. Frenkel used to act for the prosecution; these days he acts for the defence.) Take Richard Scrushy. In what was thought to be one of the strongest Justice Department cases ever, the HealthSouth CEO was acquitted on all counts, despite the testimony of five former CFOs that he had looted the company. Then there's Tyco's Dennis Kozlowski, of $6,000 shower-curtain fame. All it took was one wacky juror for him to get a mistrial. (He was eventually re-tried and convicted.) "The mere fact that the public perceives the conduct smells is not enough," says Mr. Frenkel. The bar for getting a criminal indictment is low. But the bar for a conviction -- criminal intent to defraud, beyond a reasonable doubt -- is high, and the jurors must be unanimous.

In this case, the smelly conduct turns on the issue of non-compete payments that the buyer of a company may insist on making to the seller so that the seller won't just open shop again next door. Mr. Black and his executives collected millions in non-compete payments as they sold off newspapers -- sometimes to companies they themselves controlled. The defence team will contend the non-competes were perfectly legitimate. The government will claim the payments were engineered by Mr. Black and David Radler to skim off a portion of the purchase price and put it in their own pockets.

But a financially unsophisticated jury that wants a smoking gun may not get one. After all, the defence will say, everything was properly authorized by the independent board, the lawyers, and the accountants, and any oversights in the paperwork were trivial.

Here's what's not a crime. Flying around on corporate jets, being a pompous windbag, dressing up like Cardinal Richelieu, and having a wife who says her extravagance knows no bounds. Having lapdogs as directors is no crime either. The fact that the chairman of your executive committee frequently signed important documents without reading them, and that you made sizable investments in his company, is not enough to put you behind bars.

Mr. Black has another ace up his sleeve. Eddie Greenspan is among the great cross-examiners in the business, and Eddie Greenspan is Lord Black's lawyer. Mr. Greenspan enjoys cross-examinations the way sadistic sex maniacs enjoy sex. His job is to flatten, pulverize, and utterly humiliate David Radler, who, of course, is the chief witness for the prosecution. Mr. Radler has given different accounts of events to different people at different times. Mr. Greenspan will no doubt demand to know how many of those times he was lying.

David Radler plays a role similar to that of Andrew Fastow in the Enron trial and Scott Sullivan in the WorldCom trial. He's the second banana turned state's evidence, and his credibility will be the prosecution's single biggest weapon. "It all comes down to the Radler cross," insiders say.

"If Radler can convince the jury that the non-competes were totally the decision of Black and his cohorts, as a means of diverting sales price to their own pockets, that sounds pretty bad," says John Coffee, professor of securities law at Columbia University.

Mr. Frenkel also warns that a heavy-handed cross can backfire. "If Radler is perceived to be abused or harassed by Conrad's lawyers, he may win it for the prosecution." And how he fares may well determine whether Mr. Black himself will take the stand.

"If Black is losing, he has to testify," says Mr. Coffee.

And as everyone but Mr. Black points out, that might not be a good thing. "If Black gets on the stand he needs to be human, credible, deferential, humble," observes Mr. Frankel. Not exactly his strong suits.

For a man who has spent a lifetime in the spotlight, Mr. Black seems astonishingly un-self-aware. He has sometimes shown a remarkable inability to read an audience, or see himself as others do. He seems unable to grasp that fair-minded people might not think as well of him as he does, and that not everyone is won over by his brilliance and erudition. "You'd think people who dealt with the media would have a better sense of image," says Mr. Frenkel.

If Mr. Black testifies and the jury doesn't believe him, he could convict himself. But that possibility does not seem to have crossed his mind. Mr. Black has an uncanny ability to rewrite the script of his life so that he is the hero -- beleaguered, beset, besieged, and vilified, but ultimately triumphant. If you listen to him long enough, you may even start believing it yourself.

mwente@globeandmail.com

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