Conversations With a Juror

What follows is an e-mail string over the past couple of days between Douglas Bell and Jean Kelly, a juror in the trial of Conrad Black. It’s a loose shorthand exchange, and while there are sections that may be difficult to follow due to dodgy syntax and leaps of logic, it’s our view that the readers of this blog will benefit from a relatively unmediated view inside the reasoning of a juror in this case.

JEAN KELLY WROTE:

Good evening, Mr. Bell,I’ve spent a lot of time reading the comments posted on the blogs. I have to say I’ve enjoyed yours the most. This trial was very hard for all of the jurors. I do take offense when people say “it went over our heads.” We applied the instructions on the law with the evidence presented to us, and I believe we came up with the correct decision. Many wanted to convict for all the wrong reasons. I suppose that’s why they put 12 different people in a small room for days on end!

Have a great evening and keep up the good work. I respect your kindness and concern for us jurors.

Jean Kelly

DOUGLAS BELL WROTE:

Dear Jean Kelly,Thank you for those kind words. I was interested in your assertion that you take offence at those who would suggest the case went over jurors’ heads. To my mind, the rational consistency of your verdicts puts the lie to that. If you have a moment, I’d be interested to know who among the lawyers, either for the defence or for the prosecution, helped most to shape your thinking through the course of your deliberations. Who among them made the most common sense in the course of their examinations and argument? And if I might, which of the witnesses helped most to clarify your thinking in the course of your recollections during deliberation? If this all seems a bit much for a Monday evening, I’ll completely understand. Still, I’d be fascinated to receive your thoughts.

Doug

JEAN KELLY WROTE:

Hi,Let me see, Greenspan was the worst by far, just as arrogant as Mr. Black. I would have to say that other than Ron Safer, Patricia Holmes and Julie Ruder, nobody really impressed me. As for the witnesses, I didn’t put any faith in the audit committee, KPMG, Torys or David Radler. I can’t recall the names, but the government tax expert witness helped with the APC decision. She couldn’t figure out where to put those amounts in her figures, either. Rosenberg I felt was looking out for Hollinger Int., as he should have. It seemed strange that he didn’t take notes for some defendants and could still recall damaging statements supposedly made. The defense expert witness Jinyan Li made a lot of sense. She said that it was OK to restructure Canadian taxes to the individual’s benefit and to insert themselves in non-competes. Don’t get me wrong: I do believe Mr. Black did wrong by the shareholders. The transactions he was acquitted on had proof that they were approved and disclosed. Although late and vague, the “paper trail” was there. There was also the issue of a signed, legal, binding document. Nobody forced the buyers to sign the papers at closing. I think this should be a civil case, and from what I’ve read, it is. I hope they get some of their money back. One of the conditions for the mail and wire charges was intent to defraud. I believe Mr. Black thought it was his company, he made all the money for the shareholders and thought he deserved some for himself. I truly believe he thought he had every right to take that money and, with the committees he assembled, had a green light all the way. I didn’t buy into the “scheme.” As for Mark Kipnis, that was a tough one. He admitted to the special committee that he thought the APC deals were silly. He attended every audit committee as the secretary and still kept quiet. The ostrich part did him in. It is sad, though; he was probably doing what he was told. I’ll sign off for now. My real world and real job comes bright and early in the morning.

Jean

DOUGLAS BELL WROTE:

Hi Jean,Regarding the tax expert who helped clarify things on the APC deal, when you say that “she couldn’t figure out where to put those amounts in her figures, either,” could you elaborate a bit? Also if you had to rate the audit committee, KPMG, Torys and Radler in terms of credibility, how would you? To your mind, did the ostrich instruction apply to Black as well as Kipnis in the sense that he selected a board and audit committee that he knew would turn a blind eye to the implication of the APC and Forum Paxton non-competes? And further to the same point, I was fascinated by your assertion that you didn’t “buy into the scheme.” Is it your view that Black’s criminal conduct stemmed from his feeling entitled to money that in fact belonged to the shareholders, i.e., that while he didn’t “intend” to commit a crime, his wilful disregard for the rights of the shareholders amounts to the same thing? Your remarks about Kipnis are interesting. Did you have the sense that Atkinson and Boultbee were closer to Black in terms of the degree of their culpability?

And finally, coming out the other end, what has surprised you most about what you’ve seen of the coverage? And what about you personally? Did your stint as a juror affect you in ways you might not have imagined? Again, if any of this leaves you cold, I totally understand if you’d prefer not to respond, and thank you so much for your contributions thus far.

Doug

JEAN KELLY WROTE:

Hi Doug,Those were my personal opinions. It’s kind of like Mission: Impossible—my mission should I choose to accept it is to be a fair and impartial juror. Non-competes are a common practice in the industry. We saw many similar cases involving executives from a defense witness. I think my definition of a scheme may be different from yours. I took the instructions as a planned scheme to defraud. I didn’t see that in the evidence. For me the ostrich rule applied if the person knew they were doing wrong and looked the other way. Re: Black didn’t think he was in the wrong. There were way too many what-ifs for me to convict beyond a reasonable doubt. My take on the tax expert: she determined that if the non-competes had not gone to the individuals and Inc., that money would have gone to International, thus, under-reporting income. With the APC payments, that money was already taxed from the prior deals. Radler called Roland McBride and asked how much money was left in reserves. Poof, it was gone with the stroke of a pen. Kipnis had forgotten to include non-competes in the Paxton and Forum deals. The audit committee all had the same responses. I don’t recall ever seeing them. They were sent the documents; whether skimming occurred or they actually signed off on them, it’s hard to say. Radler, KPMG and Torys were just looking out for themselves. Damage control, perhaps. My score on all of the above, like a bad toothache. It’s been very interesting to read all about this case. I had no idea of all that went on. I didn’t realize what a prominent person he was. Did you know that Mr. Boultbee is the executor of his estate? He and Peter Atkinson decided to insert themselves in the non-competes. My civic duty has been quenched for a while. It was an experience that I will take with me forever. The responsibility was a huge task, to say the least. I was struck most by the different takes on the testimony we heard. People hear the same words and draw different conclusions on what they heard. Deliberations I could do without for the rest of my life!! Have a wonderful evening.

Jean

DOUGLAS BELL WROTE:

Jean,OK, let me ask you this. I can see where the government failed to meet the burden on the majority of the fraud charges. But taking Black as an example, what to your mind was the key to the government’s meeting the burden on the three non-competes that you convicted him on? Why is the paper trail less convincing on these counts than on the others? Is it because they are essentially asking for non-competes with themselves? How did you see i
t? On the obstruction charge against Black, what was the more compelling evidence? Was it the video or the cross on Joan Maida? And on that point you were making about jurors hearing the same words but drawing different conclusions, can you give me an example? And what was the toughest part of deliberations? Thanks, as always.

Doug

P.S.: That’s fascinating about Boultbee. Did that come out in open court or have you read that after the fact?

JEAN KELLY WROTE:

Good morning,The APC transactions did not involve a sale per se. Granted, they were supposedly management non-competes after leaving the company. I saw trouble in the fact that they were the management to begin with. Unlike the other deals made, there was no evidence showing proof of disclosure or approval from the boards. It was so blatant; I was truly shocked by their actions. Supplemental payments—same thing. THEY DIDN’T EVEN SIGN A NON-COMPETE. Defense tried to say that Black wasn’t aware of the court order at 10 Toronto Street. That’s just bogus. Pointing at the cameras was bad enough; actually carrying out the boxes himself was what did it for me. And speaking of those boxes, it was there that we saw Boultbee listed as his executor.

As far as deliberations went, a lot of arguing, yelling and snide remarks all the way around! I don’t feel comfortable saying what we disagreed on the most, respect issue to my fellow jurors. I don’t mind telling you that I lost it with the “sleeper.” After a rather bizarre statement was made, I told her that I had taken notes for 15 weeks and had paid attention while she slept her way through most of the trial. She informed me that it was all an act, she knew everything and had taken more notes than me. I had a good laugh the next day when she told someone else, “I wish I hadn’t slept so much. I wrote this down but can’t remember which witness said it.”

My real life is slowly coming back to me. The phone calls from the media have slowed down, and I’m getting back into my work routine. I no longer have need for Zanax or Tums!!!

Happy Wednesday,

Jean