Black Talk: A Live Discussion

My conversation with Alan Gold is now on. Please read it here.

UPDATE: Our conversation has now concluded. The transcript follows:

Douglas Bell: Welcome to our second live discussion with legal expert and esteemed criminal attorney Alan Gold. Alan, in light of the verdict and its aftermath, my first question is an obvious one: What were your feelings about the outcome? Were you surprised?

Alan D. Gold: Not surprised.

Douglas Bell:Okay. Given that, how would you assess the jury’s performance? Were they consistent in their application of the law?

Alan D. Gold: The technicalities of the charges were a bit of a maze. Unsurprisingly, the jury applied some rough justice. By that I mean they seem to have applied simple rules, such as: he took boxes of evidence–something totally at odds with the rest of his life (no heavy lifting; others do everything); he got money for agreeing not to compete with himself. The verdicts are understandable if you ignore the technical legal requirements and see a group of lay people looking for simple yardsticks.

Alan D. Gold: The jurors’ public comments, including those on this Web site, indicate articulate, thoughtful people. But if you read their explanations carefully, you clearly see evidence of an issue that always concerns lawyers about juries: do they really reason first and then reach the result, or do they reach the result first–thanks to whatever motivations or influences are actually operating–and then come up with the reason (some would say rationalizations) second. This is both the genius and the curse of the jury system.

Douglas Bell: But isn’t that the point when you’re playing to a jury? The Eddies’ strategy of beating on Radler in the summations and offering little in the way of a defence for the most brazen of the non-competes obviously didn’t work, but it was an effort to simplify things. In your view, would there have been a different verdict had the case been tried before a judge?

Alan D. Gold: This is the start of a discussion that by itself could go on for hours, if not days. As it turned out, we know from the jurors that Radler became a discard as far as evidentiary value is concerned. But surely it is fair to attribute that to an effective defence destruction of him. So the real question is: did Radler come to function as a rather effective distraction for the prosection, at which the defence threw all their resources, leaving their flank exposed (in military terms)? It is easy to see that in hindsight. I would not jump to the conclusion that this was a brilliant strategy by the prosecutors, though that is always an available theoretical hypothesis. Maybe other lawyers would have realized Radler was not the make-it or break-it element of the case and devoted equal effort to other aspects of the prosecution’s case. There are no take-overs in criminal law so we will never know.

Alan D. Gold: And to answer your question, yes, I think most criminal lawyers in Canada would have tried the case before a judge alone, for the very reasons implied in our conversation.

Alan D. Gold: In effect, focusing on Radler was oversimplification, because it failed to address the parts of the prosecution’s case that did not depend on his word.

Douglas Bell: There’s a strong sense among both journalists and lawyers that Eddie Greenspan’s performance at trial was substandard. First, do you agree, and second, can you offer any insights as to why this perception persists?

Alan D. Gold: I think the journalists are echoing what was subsequently expressed by the jurors. Different lawyers have different styles. A trial is a performance, and advocacy consists not just of figuring out what to say and do, but how to say and do it in order that you be most appreciated by, and influential with, your audience, i.e., the jury (or judge). Ultimately, the only objective criteria is result. If the jury had acquitted completely, I am sure their distaste for a particular style of cross-examination would have been forgotten.

Other lawyers would have done things differently. Different courts have different cultures. Apparently the style in that court is different than we are used to. Whether it was better or worse is hard to say when one is really discussing subjective issues of taste and style.The client was convicted in part. A lawyer is going to personally view that as a failure even if the media and others praise his performance to the heavens. When a lawyer goes to a strange place to do a trial they will always visit in advance and observe how things are done–not to pretend they are native, but like a tourist, thoughtful to not incur any local wrath.

Douglas Bell: Do you see any possibility of Black winning his appeal? What should we be looking for in the way of benchmarks in that regard?

Alan D. Gold: Each case is unique. As the disclaimers in the market say, past performance is no guarantee of future returns. But the statistics are not hopeful for any accused person. The reversal rate is small, but since the number of jury trials is small and the number of appeals even smaller, maybe we cannot put too much stock in the statistics. But the legal databases of cases allow us to search on particular details such as judges. Out of curiosity, I searched for appeals from the trial judge. There were several dozen criminal cases. There were no reversals, only two cases where there were minor modifications of sentence decisions. According to the database, she also won the appeals in which she appeared as a prosecutor.

Douglas Bell: What’s your best guess regarding the sentence? What can the sentencing consultant Steinbach do to mitigate the damage?

Alan D. Gold: I am sorry, but not being learned in the intricacies of American sentencing rules, I cannot really say. I only know the numbers bandied about in the media, and the sentences imposed in other recent American white-collar cases would shock any Canadian lawyer and far exceed what might be imposed in a comparable case in here.

That said, the sentencing consultant presumably prepares evidence and materials to persuade the judge of those mitigating factors that could possibly lead to a lower sentence.

Douglas Bell: Okay, Alan, last question: Will Black’s indictment, conviction and sentencing affect the Canadian criminal justice system in any significant way, i.e., in the prosecution of white collar crime?

Alan D. Gold: There are structural differences between our two systems that actually create some resentment on the part of Canadian police, who envy their American counterparts. But those differences are not flattering to the American system. Our system ensures full disclosure in fact and in reality, which means our police have huge resource issues in white-collar cases, to highlight one diffference. The American system, which often pays lip-service to disclosure but actually functions with far less of it, is essentially more efficient and effective because it pays less respect to the rights of an accused. In short, we will never be as efficiently and effectively brutal in our prosecutions, and I hope most agree that we should not be, that this difference is a good thing.

Douglas Bell: Thanks, Alan. As always, great stuff both this afternoon and over the last several months.

Alan D. Gold: My pleasure.