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Sunday 8 July 2007

Kissinger on Black list of witnesses for the defence

'I SOUNDED him out on the trial of Conrad Black," wrote an interviewer last week about Henry Kissinger. "Kissinger was on the board of Black's Hollinger International, but disassociated himself when Black's alleged misdemeanours - of which Kissinger was unaware - came to light, prompting Black to remark: Et tu Brute? Kissinger appeared not so much hostile towards his one-time friend as resigned. The press was wrong to say, however, that he was intending to testify against Black. He had no such plans, though 'maybe I'll be subpoenaed for the defence'."

Oh, yes, please, Lord Black. Have your ex-mate subpoenaed. Your trial needs livening up. Although one might baulk at giving an 83-year-old a hard time, this particular 83-year-old has it coming, and judging by some of the proceedings last week, it may well come.

A big issue in this trial is the issue of non-compete payments. Broadly, what this means is that if Tony O'Reilly were to flog the Sunday Independent to Rupert Murdoch, Murdoch would be a sap if he didn't bind him to an agreement not to set up a competing newspaper and O'Reilly would be a sap if he didn't make Murdoch pay plenty for such an undertaking.

Black is being accused in mind-numbing detail of having, by underhand methods, improperly diverted millions of non-compete dollars from the sale of various Hollinger newspapers away from the main company to holding companies under his control.

But snags are beginning to appear in the prosecution case. Last week, it emerged that minutes of Hollinger board meetings showed that the board and its audit sub-committee had explicitly approved various payments under contention. So, if Kissinger is called to give evidence, does he claim he was unaware of the alleged misdemeanours because he didn't understand what was going on? Was he perhaps having a little octogenarian nap during the discussions? Or was he failing in his fiduciary duty by taking Hollinger's money and asking no questions?

In another boost for the defence, Fred Creasey, the former Hollinger comptroller, was caught out in court by paperwork which demonstrated that he was involved in innumerable meetings and read mountains of memoranda concerning transactions he had said he remembered nothing about. He also got into a spot of bother over Bora Bora.

Now, the matter of the Blacks' idyll on the Polynesian paradise of Bora Bora was confidently expected by the prosecution to be a winner with a jury, most of whose members would think themselves lucky to afford a weekend in Seattle.

Allegedly, the couple cost Hollinger almost $600,000 (€450,000) by using a company jet for the round trip. Yet it was clear that Black was indeed working on company business while on his travels and had continued his annoying habit of making calls to colleagues at extremely inconvenient times. What was more, the figure of $565,326 had been arrived at by Creasey because he calculated the cost of using the jet at $24,000 per hour, even though one could be leased commercially for less than a quarter of that amount. And, in any case, when Creasey had queried if the trip was properly a business expense, Black had offered to pay half and had declared the perk to the government as income. As the journalist Mark Steyn - who has stayed loyal to his old boss and goes to court every day - put it, "as a criminal act, Bora Bora is several blades short of a grass skirt, and the government's lovely bunch of coconuts seem rather few innumbers".

So it's not cut and dried yet, and the lawyers know it's all to play for. Observers note that prosecution attorneys have adopted the ploy of raising disbelieving eyebrows, sniggering or grinning to distract the jury when the defence make points. "They're trying to make it look like what we're saying or doing is nonsense," said one defence attorney. "Everyone has their schtick [Yiddish for 'a cunning ploy']. I just hope the jurors see through it."

The defence also have their schtick: Black's crippled lawyer, Ed Genson, ruthlessly uses his disability. Last week, leaning against the witness box for support, he held out a piece of paper for a prosecutor to view. When the guy failed to look up from his computer, Genson began to stagger towards his table until someone nudged the unseeing prosecutor and he got to Genson before he collapsed.

They'll be saying - as Kissinger did of the Iran-Iraq war - "It's a pity they can't both lose."

Ruth Dudley Edwards

© Ruth Dudley Edwards