Conrad Black

by A Matter of Principle

  Sussman had a weak conclusion with Radler on the morning of May 9, and it was Greenspan’s turn. This was the moment we had all been awaiting for sixteen months; it was Crispin’s Day.

  Greenspan had an odd start. He demanded, for more than ten minutes in a tone of biblical wrath, to know if “God” had been mentioned in the oath Radler took in Kelowna claiming falsely to be an equal shareholder to me in Horizon. Radler replied with excessive deference in contrast to Greenspan’s pugnacity.

  Greenspan: You were sworn before a Canadian court to tell the truth, so help you God in a trial that was conducted on January 25th, 2002, in the case of Winkler versus Lower Mainland Publishing Ltd. Correct?

  Radler: That’s correct, yes.

  Greenspan: You swore at the trial to tell the truth, correct?

  Radler: Yes, I did.

  Greenspan: And you swore to God to tell the truth, right?

  Radler: I swore to tell the truth. I don’t remember the actual, the actual –

  Greenspan: You swore on a Bible, you swore with a Bible in your hand. Correct?

  Radler: I don’t recollect the Bible but I will accept that it’s possible.

  Greenspan: Canadian courts are no different than American courts, right? On that, at least on that point, when you swear to tell the truth.

  This unfortunately was another procedural difference of which Greenspan was unaware. U.S. courts don’t require a Bible.

  Radler: I swore to tell the truth.

  Greenspan: And you swore to God that you would tell the truth “so help you God” correct?

  Radler: You can … do you have the transcript of what I did swear?

  Greenspan: Yes, I have the transcript, which summarized that you were duly sworn. And duly sworn I am going to suggest to you, you well know that you took the Bible in your hand to tell the truth, so help you God.

  Radler: I was only in court once – twice in my life, sir.

  Greenspan: I don’t know …

  Radler: So I do not …

  Greenspan: Are you having difficulty with my question?

  Radler: I just want to see the basis on which you said it. You said I swore with my hand on a Bible. Show me the basis.

  The Rat was chasing the Cat.

  Greenspan: Well, I’m going to suggest – did you swear with a Bible in your hand here?

  Radler: No I didn’t.

  Greenspan: You didn’t swear with anything in your hand?

  Radler: That’s correct.

  Greenspan: OK. I see. So the testimony you are giving is not sworn testimony?

  Radler: It is sworn testimony, yes.

  Greenspan: It is sworn testimony. How?

  Radler: I swore to tell the truth.

  Greenspan: With no Bible?

  Radler: With no Bible.

  Greenspan: And you swore to tell the truth in British Columbia with no Bible?

  So it went.

  On and on and on. Greenspan was revealing that he had not paid attention when Radler had been duly sworn in front of him just two days earlier. His repetitive and unproductive questioning was minimizing the valid point that Radler had not told the truth in that earlier court case. Greenspan’s next move was to become infuriated with Radler when he fumbled with pages shown to him. At one point, more or less predictably, Barbara passed me a note suggesting that I interrupt proceedings and tell the court that there was a medical emergency that required Greenspan to withdraw. This would have been the most catastrophic course imaginable, and I ignored it, but it did betray the flaring nervosity in our camp, which I shared.

  Greenspan had serious points he wanted to make, but his delivery and courtroom manner seemed out of synch with his material. He began with fury and had nowhere to build when he got to the heart of the matter. Radler quickly saw that Greenspan was having difficulty and began to enjoy himself. Over at the defence tables, the mood was grim. Safer held his head in his hands and only looked up to mouth the words: “They hate him, hate him,” referring to the jury’s feelings about Greenspan. The impossible was happening in front of us. Greenspan was turning Radler into a sympathetic witness.

  Greenspan gradually strengthened, and was counselled by other lawyers at the break and came back fairly well. He scored heavily, again and again eliciting that Radler had lied. He pounded through many instances of his lying, and followed the sixteen meetings with the Special Committee and the U.S. attorney, tracing the evolution of Radler’s story until he eventually claimed that he had been instructed by me to conduct a criminal conspiracy against the shareholders. Endless admissions of lies as he scaled the heights of accusation necessary to secure his undisturbed control of the Horizon newspapers and the penitential golfing holiday in British Columbia wore down Radler’s jauntiness. There was no jokey or respectable way of admitting to such a dismal sequence of lies and thefts. Radler himself had none of the contrition of the wrongdoer confessing to a conspiracy he was part of in order to atone for his crimes and oblige others to do the same.

  He made a mechanical admission that he had lied and what he did was wrong, but said that Boultbee and I had told him to do it and that Atkinson was in it up to his eyeballs too. He did perform the commendable service of trying to excuse Mark Kipnis. He said that Kipnis had not been given a $150,000 bonus because of his role in the controversial payments, but because he had been terribly overworked, especially in the CanWest matter, and had saved the company $750,000 in legal fees. This, apart from stating his name, acknowledging that he was a liar, and defending the payments from American Publishing, were practically Radler’s only truthful utterances in his many days of testimony.

  I occasionally reflected, as the Radler showdown wore through the May days, what a strange relationship we had had. We had both believed in the newspaper business and determined to expand as quickly as possible, having seen the profits that could be made from the Sherbrooke Record, which had been completely derelict when we had bought it in 1969.

  He married and moved to Prince Rupert, British Columbia, when we bought the newspaper there, and then to Vancouver. And in 1974, I moved to Toronto. We spoke on the telephone about once or twice a week, depending on business factors, and each of us took responsibility for expanding his “division.” When the opportunity to take over Argus Corporation came up in 1978, I became more preoccupied with other things and he broadened into other, not very successful ventures, such as a group of B.C. motels that were chiefly maintained in business by the government of Canada, which housed welfare cases in them, and a jewellery store in San Diego that never made money.

  David Radler told me that he had always filed his tax return with an obvious error in it, so that the tax inspector would think he had caught any liberties in the return when he discovered that. Similarly, it was part of his personality that he seemed to think that in admitting he couldn’t send a fax or an email, he was making up for the millions and millions we lost on the Jerusalem Post, the eighteen-month delay in starting up the new printing plant in Chicago, and his other blunders.

  Once the Internet arrived, David Radler pretended it wasn’t happening. He claimed total vindication when the dot-com bubble burst, and he was opposed to spending anything on promotion of the Sun-Times, or any Internet aspect to it. He was a poor publisher in Chicago, intimidated by a large unionized property, a large strange city, and the pre-eminence of the Tribune. He was never interested in editorial matters, other than laudations of Israel, and his answer to everything was to cut costs. He caused terrible ill will to arise against us in the Chicago properties, largely because of his propensity for mad, counter-productive economies such as shutting down the escalators.

  Despite management errors, we did get the Sun-Times off ancient letterpress machinery that produced a visually terrible product. And we did buy many of the surrounding community newspapers to give the Sun-Times a solid framework of supportive local titles. Because Radler was so capricious, overbearing, and insensible of elemental personnel relations, there was no esprit in
the company at all in Chicago.

  After I went to London in 1989, I saw Radler only at occasional board meetings in Toronto or New York. The prosecution had tried to make the case that we were intimates and that our families holidayed together. Greenspan quickly elicited the fact that the one time we had holidayed as couples (with my first wife, but a few months before we were married) was in 1978 and that it was, as Greenspan put it, “so memorable, it has not been repeated in 29 years since.” In fact, though his wife was pleasant and had a good sense of humour, the only basis on which I ever enjoyed him after we left Sherbrooke was hearing his recitations of amusing business experiences over the telephone.

  It was naturally a very strange experience listening to his false incrimination of me but also seeing his squinty, evasive eyes. As he was brought through the court by the government handlers, or from the elevators to the holding room, he appeared an outcast, even to himself. Hunched, furtive, with darting, fearful eyes, he looked like a man bound for the gallows, worn down as much by a knowledge of his own wretchedness as by the impending punishment.

  Now despised, perhaps even despising himself, a derisory shadow of the former strutting, orders-barking executive, as exhausted of wisecracks as of integrity, unattended by any family or friend or even a lawyer of his own (apart from one day), David Radler was too distasteful to be pitiful, too diminished to remind anyone of his days of consequence, too banal to arouse any interest at all.

  I had always known there were compatibility problems with him, but I had never until now realized the scale of them. When I saw him leave the courtroom for the last time, as if in a trance: twitchy, timorous, and bowed from the battering meted out to him, abetted by the prosecutors’ obvious indifference to him personally, unlike other government witnesses, whom they cosseted with feigned respect, I hoped and expected that I would not see him again. His was a strange and affecting tale. He had been an upwardly mobile Duddy Kravitz, but was gradually transformed by the thinning air and rising pressures of the spheres he rose to, not toward self-confidence and serenity, but rather misshapen by envy and insecurity that drove him to treachery and cowardice. The fearful deserve sympathy. But in this case, it must be deeply mitigated by David Radler’s dishonesty. Yet it is very sad.

  There would be some drama yet, before the curtain came down on him in these proceedings. The next day, May 10, was the anniversary of Winston Churchill’s installation as prime minister and his utterance of the words Eddie Greenspan had carried in his pocket: “My whole life has been a preparation for this hour and this trial.” On this day, inexplicably, Greenspan simply collapsed, and was terribly ineffective. He was ponderous, repetitive, disorganized, and excruciating. It was mortally embarrassing. More and more frequent and urgent messages came up from Barbara, Alana, and Jonathan, two rows behind me. Fortunately, it was only a half-day, and court would adjourn until Monday, May 14.

  Greenspan continued to expose Radler as a liar, but with no novelty and in a terribly slow and laborious way that almost incited sympathy for the witness. Finally, when he put, for what must have been the fiftieth time, the question “And that was a lie?” Safer, of all people, objected: “Asked and answered.” “Sustained,” said the judge at once. It was a crushing insult to a lawyer of Greenspan’s stature, for a defence co-counsel to humiliate him before the whole court and the media. He looked quizzical, and had no apparent notion of what a slow-motion taxation he was putting on the court and everyone in it.

  IT WAS A FUNCTION OF HIS DIABETES and medicine and eating habits, which his daughter Juliana and document lawyer Jane Kelly were supposed to oversee. If everything wasn’t in balance, Eddie would run down like a clock, and become slower and more tedious. It was a cruel fate for such a good lawyer, but it was an unkind destiny for the client, too, especially at such a crucial moment in this trial and in my life. I could hardly believe that I was now to deal with another unbidden crisis. As Gus Newman said to me, my counsel had to tear Radler down and, as he put it, “expose him as a scum-bag.”

  There was a new crisis in our camp, as we considered what to do with Greenspan. May 10 had been a disaster. Court would resume on Monday, May 14. Earl Cherniak, a distinguished Toronto barrister who was acting for me on many of the civil matters I was involved in in Canada, and his associate, Lisa Munro, came to Chicago to test me as a witness, in case I decided to testify. For three days I had Earl doing a pretty fair simulation of Sussman, though much more intelligent and, when he worked at it, almost as obnoxious. All thought we were winning our case, and had established much more than a reasonable doubt on every count. Any fair reading of the transcript and examination of the exhibits confirms that we did.

  Earl’s preparations were useful. While Greenspan was in the room, I couldn’t resist giving outrageous answers, but after he left, I toned down my responses and got through the questions fairly painlessly. When the time came, though I was well-prepared, all the defendants and their counsel thought such an appearance unnecessary by any of us.

  One of the problems Greenspan had, which had not been anticipated for so legendarily quick-witted a person, was that though all of his questions to each witness were written out for him as in a script, between Sussman’s interruptions and Radler’s diversions, he tended to lose his way. Radler had developed the technique of claiming to be unable to answer questions without seeing the document referred to, and Greenspan fell into the habit of showing it to him. I asked why this indulgence was given to Radler; why not oblige him to answer? Greenspan thought that it was better to allow him to read what he had written or said in order to force him to reconcile it with contrary statements or facts rather than merely saying that he didn’t recall. He was probably right, but it made for a very grinding cross-examination. Sussman and Cramer were likely pleased with this tactic, which cushioned the impact on the jury of the credibility problems of the witness.

  When Greenspan did not get the answer he was anticipating, it tended to throw him off, and he moved on to the next question on his list, even if it was made a non-sequitur by the unexpected answer. It created the impression of a disjointed, somewhat feckless, cross-examination. He had done a good deal of damage to Radler initially but had been so repetitive and ineffectual on the tenth that none of us was confident that the jury, as several of its members descended toward the arms of Morpheus, grasped the implications for the prosecution’s case of the enormity of Radler’s falsehoods.

  Over the weekend, the tactic emerged from lawyers meetings, as I was being tortured by Earl with his super-Sussman simulation, of dealing rapidly with five separate themes with Radler on Monday. George Jonas, by telephone, and Earl and I went over things carefully with Eddie Greenspan. I attended the strategy conference, which was an unusual event and not particularly welcomed by the lawyers, who tended to regard the client as an annoying object, as opposed to an animate subject, who caused their effort to be exerted and their invoices to be generated and paid. I had a heart-to-heart talk with Eddie, and checked Eddie’s sleep and diet matters with Jane Kelly. It seemed like what we were planning was a sensible change of pace that the enemy would not anticipate. When I called on the evening of May 13 to give him a final word of encouragement, he was so tired, he was almost incomprehensible but assured me he was about to retire for the night.

  MONDAY, MAY 14, WAS A SMASHING success. Greenspan was alert and crisp, and Radler and his masters had no idea how to deal with what we threw at them. Greenspan had caught Radler saying on his first day of cross-examination that he had read the Special Committee reports, and on his second day that he had not. He could not explain the contrary transcript extracts when they were placed in front of him. Eddie walked him through the Horizon swindle, where he had pledged to be a passive, minority shareholder, and controlled the company; where he had pledged that our shareholdings were equal and lied under oath in court in Canada about it. There was a series of other inconsistencies that were quickly raised and that Radler could not answer. He floundered and waffled an
d clearly disgusted the jury. The prosecutors, who delighted in mimicry and juvenile facial gestures to the jury, looked very wan and drained and studied the tabletop like chastened schoolchildren rather than the faces of the female jurors.

  The climax was when Radler claimed not to have had any idea that being transferred to Canada would reduce his sentence to six months. Greenspan was well prepared for that and recited extracts from the relevant texts, described the facilities he would go to, with theatre and golf and horse-riding therapy. Greenspan eventually revealed that Radler had retained one of the foremost parole counsel in Canada three years before, and demanded to know what lawyer had advised him to give the false answer he did in court in Kelowna on the Horizon issue. It was a rout, Radler was smeared over the floor and walls, and it was the Greenspan of olden time. Regrettably, the court refused to allow us to call him back as a witness to plumb the depths of the Canadian perjury and treaty transfer issues.

  The Canadian media at the court, which had touted Greenspan to their skeptical British and American colleagues as the trial began, and had seemed to be justified after his demolition of Kravis and Thompson, had been scandalized by the disaster of May 10. The Toronto Star wrote that Greenspan was washed up and had always been overrated and that I should put him on the first plane home to Canada. After May 14, however, everyone conceded that he was the leading figure of the courtroom. The CTV National News opened with five minutes on his demolition of Radler. On May 10, the Toronto Star reporter (Jennifer Wells) had predicted life imprisonment for me. On May 14, CTV’s correspondent (Steve Skurka) predicted victory for the defence.

  Gus Newman followed Greenspan and was at his best. All the defence counsel had the same interest in the destruction of Radler, and there was no difference in this respect between the interests of any of us. Ron Safer wound up the cross-examinations on May 17 with one of the trial’s spectacular moments and histrionically tore the Rat to pieces yet again. He dwelt upon the relations between Radler and Thompson, pulverizing two already dying birds with the same stone. He referred to Radler’s letter to Thompson and Paris in November 2003, in which he stated that Thompson’s committee had approved the contested non-competition payments. This gave the lie to all Radler’s assertions that there had been a scheme to steal money. “You wouldn’t write a letter to Governor Thompson stating that he had done something you knew he had not done, would you?” Radler wobbled badly again.