That’s My Story and I’m Sticking To It

Last posting I discussed the real legal issues and the relevant evidence. There is a school of thought that discounts the significance of both those things. A criminal trial, this popular theory says, is a battle between competing “stories.” The jury, for reasons beyond conscious awareness, becomes engaged by the story of one side or the other, and then interprets the evidence so as to support their preconception.

The prosecution’s story is relatively traditional: the four accused “stole $60 million.” The victims were “thousands of public shareholders.” The greedy accused decided their six- or seven-digit salaries were not high enough. They wore suits and ties instead of masks and dark clothing and did not use guns or crowbars, but they were “bank robbers” all the same. They acted “secretly” and covered up by “falsifying documents to make it look … [like] a normal business deal.” The “scheme” they used was a non-competition agreement.

The defence story represents the counterpoint. The accused did not steal: the company was “stolen from Conrad Black.” The accused built up the company, so it made “money for its shareholders.” “There were no books altered,” “no false assets,” no “changing the financial records,” “no accounting fraud, no bankruptcy, no unemployed employees.” Non-compete agreements are usual in this business. If any non-compete agreement was improper or criminal it was instigated by Radler, not the accused. The prosecution case depends on Radler, an admitted liar who is now blaming the accused for his wrongdoing.

In this view of the trial, the indictment, the law and the truth fade into the background to become almost irrelevant. It does nott matter if what the accused did amounts to an offence under the law, and it does not matter if the technical, complicated indictment is proved. What matters is whether the jury accepts the prosecution’s story. If not, the accused will be found not guilty.

From this perspective, the prosecution in the Black case, prior to the arrival of Radler, appeared to be in trouble, because while the evidence is capable of supporting convictions, their story is not being supported by the evidence. The previous witnesses, who, according to media reports, were “devastated” by the defence counsel to the obvious chagrin of the prosecutors, illustrate this point.

In essence, high profile, presumptively talented and highly experienced business people who were being well paid to safeguard the corporate and shareholder interests were demonstrably inept at doing so. It turns out that references to the accused’s actions—the non-compete agreements and the accompanying largesse—can be found sprinkled throughout the voluminous corporate documentation. These references were either unnoticed or unappreciated at the time by the witnesses. The lack of attention by the witnesses—reading by skimming or not reading at all—as well as the substantial payments they received notwithstanding their dereliction of duty is certainly a major embarrassment.

But if the competing stories theory does not hold true here, if law and principle rule, these witnesses do not damage the prosecution. What the witnesses, in essence, had to say was: “yes, I did not do a job I am proud of, but that’s because I didn’t appreciate the true nature of the accused. I didn’t appreciate that I couldn’t trust them to be honest and forthright with me. I didn’t realize I had to read every word of every document looking for clues of what they were up to. I foolishly presumed they would bring to my attention what I needed to know and pass judgment on. In hindsight, I see the minimal information they inserted to allow them to make a colourable claim of disclosure.” The witnesses might even embarrassingly add: “They took my measure and knew I would not read carefully and see the information. I am embarrassed by what their conduct says they thought of me.”

That the accused left clues that could and even should have been discovered is not a defence to a criminal act. If a person in authority approved the dishonest taking of money from the compay or did something that led the accused to believe the extraction was authorized, that could be a viable defence. But it is not clear the defence cross-examination succeeded in going that far. So skimming, while embarrassing to the prosecution witnesses, is not necessarily in strict law destructive of the prosecution case or any cause as yet to book the defence victory party.

But the prosecution’s story of its case does not allow for any such assessment of this evidence. Its story is of “bank robbery,” and bank robbers do not notify their victims of their intent to rob, hoping they’ll be asleep at the switch, hoping they’ll say: “I did not really notice the men with guns and masks had come into the bank; oh yes, I see now the video of the robbery, but at the time I was in my office busy with other things and just ‘skimmed’ my surroundings.” In other words, this body of embarrassing evidence is so inconsistent with the bank robbery story of the prosecution that it becomes puzzling why the prosecution chose the story in the first place.

The prosecution must have known the state of the evidence. They must have been aware of the documentation that went unnoticed or unheeded by their star witnesses. The story of crafty, dishonest business people knowing their contemporaries, knowing they would not pay attention or notice footnotes so as to allow Black to create a sham display of disclosure is a perfectly sensible story that would have undermined what the majority of the media is portraying as the defence’s best day.

Why would the prosecution have ignored that story in favour of the bank robbery one? Why would the prosecution put such witnesses on the stand without some defensive foreshadowing of their deficiencies? Was it pride on the part of the witnesses who refused to acknowledge their faults? A prosecutor has the duty to make a witness live in reality and not some self-serving fantasy of competence. Were the prosecutors so besotted by tunnel vision they actual did not appreciate the significance of the footnotes and the fact documents went unread and so handed the defence a victory in a battle that should never have been fought? Were the prosecutors blinded by their luminary witnesses?

If the jury makes the prosecution prove its story for a conviction, Conrad and his co-accused could well be acquitted. If they view the embarrassing cross-examinations less as proof that the accused were not bank robbers and more as proof that Black had a cunning knowledge of his business companions, then the prosecution has a fighting chance. And at the end of the day, the case may stand or fall on Radler’s evidence and what he has to say. But that’s another story.

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