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The Sunday Independent
Sunday 24 June 2007

Here in Toronto we have no idea

I MUCH enjoyed the beginning of Lorrie Goldstein's column in the Edmonton Sun this week:

"Does anyone out there know what's going on at the Conrad Black trial in Chicago, because here in Toronto we have no !@@## idea. Reading our local media, you'd think there was one trial going on in the Windy City and another on Mars. All I can tell from the duelling press accounts is that Black is either:

(a) sitting pretty with an angel on each shoulder as this deeply misunderstood titan of the business and media worlds, to say nothing of being a celebrated biographer, heads serenely towards acquittal and vindication - unless the jury is really stupid, or,
(b) that Black and his three less famous co-defendants are heading straight for the Big House [American slang for jail], Chicago-style, on charges of racketeering, fraud, tax evasion and (for Black) obstruction of justice, arising from the sale of some Black-controlled newspapers."

Well, Lorrie, even if, like me, you also read the British and US media on the case, you wouldn't be much less confused. It would be a foolish virgin who would put her shirt on either outcome, especially since the judge made the 'ostrich instruction' that - even if innocent of fraud - the defendants could be nailed for allowing it to happen.

On the one hand, despite going after the rich and the powerful, the local prosecuting attorney, Irish-American Patrick Fitzgerald, has a 95 per cent conviction rate (Lewis "Scooter" Libby, US vice-president Dick Cheney's ex-chief of staff, is the most recent high-profile trophy). On the other, I can't see that he has proven his case against Black - let alone against his three co-defendants. Certainly Black liked living high on the hog and considered himself entitled to do so at the expense of his very successful media empire.

"We have a certain style that all these shareholders were well aware of when they came in," he wrote in September 2002 to Hollinger colleagues, in response to criticism from hedge fund investors who were trying to take control of the corporation. "We should fine-tune that style, not revolutionise it with a Damascene conversion to vows of poverty." The fine-tuning was too little and too late to stop the inexorable march from criticism to investigation to prosecution. But did Black actually do anything illegal?

"We're not here because somebody made a mistake," said Julie Ruder, who by common consent made with great spirit the closing argument for the prosecution. "We're not here because somebody forgot to dot the i's or cross the t's, but because 'five men . . . systematically stole US$60m from the shareholders of Hollinger International." Tacitly admitting a shortage of killer facts, she reminded the jury that they had their 'common sense'.

Black's lawyers don't seem to have performed particularly well, but their arguments were more substantial: the prosecution case relied on David Radler, a proven liar and self-confessed fraud, who had sold out his long-term partner to save himself; there was no smoking gun of incontrovertible evidence; having approved disputed payments, the audit committee had later lied to save their reputations; no victims had been found to give testimony, and frequently irrelevant details of Black's spending habits had been introduced to prejudice the jury against him.

Black was "a little bit of a stubborn man, but he's an innocent man", said attorney Ed Genson.

Not only was he not guilty: "Conrad Black is a good man. Conrad Black did a lot of good things for Hollinger. Conrad didn't steal, didn't attempt to steal. Being wealthy doesn't make you a bad man, nor does being famous or outspoken. The government in this case overreached. The government in this case has manipulated the facts."

True. But that doesn't mean the government won't win.

The increasingly harsh treatment of white-collar crime in America is a consequence of a massive upsurge in shareholder numbers. Since about half the public own shares, punishing corporate corruption is now hugely popular with the electorate. But Enron was one thing: Hollinger is another. "Were [this case] to succeed," wrote Mark Steyn last week, "and its precedents to be accepted as the norm, it would mark the beginning of the end for the principal vehicle of Anglo-American capitalism: the public company.

"The goose keeps laying a golden egg every year, and the best by far is yet to come," wrote Black to colleagues, shortly before he was pushed out, and his politically correct successors, the agents of purist corporate governance, killed the goose.

Ruth Dudley Edwards

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