Persecuting the Obviously Innocent Man: Potentially Lord Black’s Saving Grace

From June 26, Mark Steyn provides an excellent take on why the inclusion of Mark Kipnis seriously undermines the case agains the other three. In order for the charges of fraud to stick, Mark Kipnis has be an accomplice; the handler who arranged all the agreements knowing they were stealing from shareholders. But Mark Kipnis did not derive any benefit, beyond his usual yearly bonus, for helping arrange the non-compete agreements. Mark Kipnis refused to fold and cop a plea like David Radler, thus suffering the government’s wrath for not toeing the line.

It’s really quite amazing when you think of it! Here is a man—the sole American—of no signifant social acquaintance to either Black, Boultbee, Atkinson or Radler. The idea that he perpetrated fraud for no derivable benefit rebuffs the heart of the goverment’s case that any fraud, whatsoever, was perpetrated. And the fact that Kipnis refused to roll over for the government, refused to lie rather than tell the truth, being persecuted with men of no significance to him at all, speaks to his exemplary virtue!

In finding Kipnis guilty of fraud, on the same counts as Atkinson, Boultbee and Black, the jury has committed the same error the government made at the beginning. They have lumped a clearly innocent man into the series of appeals that now follow.  If this was fraud, what did Kipnis gain from it?  Clearly his annual bonus was hardly compensation for the kind of “fraud” the prosecution alleged.

Those now claiming the jury “separated the wheat from the chaff,” fail to recognize that this jury failed to acquit Mark Kipnis. In doing so, they have furthered the persecution of an man most obviously innocent; any success Kipnis gets on appeal, now rippling across to the other three.

Here’s how Steyn accounts for Kipnis’s contribution to these recent proceedings:

The points made by Ron Safer are peripheral to his client, the Fourth Man Mark Kipnis, but they’re helpful to Conrad Black, Jack Boultbee and Peter Atkinson. That’s the sub-text of this trial. Having failed to roll Kipnis and Atkinson before they got to court and thus forced to prosecute four guys rather than the two they’d planned for, the government was confident it could still rattle the multiple defendants sufficiently that they’d be distancing themselves from Black and in effect damaging each other’s cases.

It didn’t happen. The four separate defences have proceeded in unity. They stuck together. …
Ron Safer has done a terrific job in summing up, marshalling the arguments and evidence and graphic aids (a Letterman-style “Top Ten List”) in very colloquial but focused way. What I find interesting is the use of little excerpts from witness transcripts – itsy-bitsy nothing exchanges no-one paid any attention to at the time nevertheless managed to elicit some or other confirmation of this or that that bolsters a point he’s making in closing argument. It’s almost as if he planned it that way, which he almost certainly did. Many of the other defences have a haphazard quality to them, as if they’re winging it and figuring they’ll settle on a strategy once they see how things are shaping up. What Safer is saying today he planned on saying back in March. Like a great novelist or songwriter, he decided what his ending was going to be and then figured out how to work up to it. Very impressive. …

Ron Safer for the defence:

“Why didn’t the government call any US auditors?”

True. They only called Marilyn Stitt from KPMG’s Toronto office, not the guys at the New York office who were principally responsible for Hollinger International.

“Why didn’t they call Pat Ryan?”

True. The defence had to call him as a hostile witness. He testified that at the Audit Committee meeting he specifically drew Governor Thompson’s attention to “Subparagraph F on page F-16″ and sought his approval.

The Synchronized Skimmers didn’t miss anything. Neither Mark Kipnis nor anyone else tried to hide anything from Jim the Skim. They didn’t need to. The non-competed were approved -”time and time and time again,” as Safer put it.

“Goodbye. That’s it. Not guilty.” …

At the climax of his presentation, Mr Safer, like Hercule Poirot, tied up all the loose ends, including the most intriguing question of all: If there’s no crime, why did David Radler plead guilty?

Today Safer gave us an answer: the very first transaction, the sale of American Trucker back in 1998. Radler and Todd Vogt (“and where’s Todd Vogt?” asked Counsellor Safer, noting the government’s conspicuous avoidance of one of the key figures in the Radler operation) transferred $2 million from the Trucker sale from International to Inc with no non-compete, no Audit Committee approval, no nothing. “He had no way out on American Trucker,” said Safer. “None… On American Trucker alone, he’s going to jail for more than 29 months.”

Facing five years or more for the one transaction for which there’s no defence, Radler the ultimate deal-maker decided to negotiate one last deal, with the US government. For six months of golf and community theatre on a farm in British Columbia, Radler gets to keep his company and almost everything else. “He’s got his millions, he’s got his plea deal,” said Safer. “In stark contrast to Mark.”

Ron Safer struck at the heart of the government’s case and emptied it of meaning. The other three defendants are very fortunate the government got cocky and decided to punish Mark Kipnis by tossing him in the shark tank with Black and co. Without Ron Safer in court, their prospects would be considerably diminished.