Folks, this is the last day for the lawyers for closing arguments. This depends if the defense finishes on time. If not, the closing arguments may finish tomorrow. Jury deliberations will be sometime this week.
From Macleans.ca website in Canada:
B-movie plot
Mark Steyn June 25, 2007 15:22:03
In her closing statement, government prosecutor Julie Ruder made a big song-and-dance about "Paragraph B" - the relevant section of the transaction agreements dealing with non-competes. Paragraph B, according to Ms Ruder, is "false" and "fraudulent" and a big plank of the "cover story".
Today Ron Safer put up the earliest extant example of Paragraph B, from Hollinger's sale of newspapers to CNHI in the late Nineties. The "false" "fraudulent" "cover story" was drafted not by Mark Kipnis or anyone from Hollinger but by Mr Henson, the lawyer for the buyer, CNHI. As Mr Safer said, "Paragraph B is Henson's language, not Mark's."
What kind of "scheme" leaves it to people who aren't in on the scheme to cook up the "cover story"? Either Julie Ruder didn't know this, in which case she's incompetent, or she did know, in which case she's stretching the argument beyond what it can plausibly bear.
Cramer vs Cramer
Mark Steyn June 25, 2007 13:24:32
Ron Safer has taken to the floor now, to sump up for his client Mark Kipnis. Months ago, I suggested that all the defence needed to do was read back Jeffrey Cramer's opening statement and punctuate it with Safer's trademark stage-Jewish shoulder shrug. Counsel began with at least a nod in that direction, referencing Cramer's absurdly overheated contention that the four defendants are no different from a street mugger - "a guy knocks you down, takes your wallet".
Nobody got knocked down, nobody lost his wallet. As Mr Safer pointed out, there's nothing sillier than a powerful argument you can't deliver on.
Stand-up guy
Mark Steyn June 25, 2007 13:20:02
Michael Schachter ended his closing statement by asking Peter Atkinson to stand up. Peter did, a bald sheepish man looking a little flushed and embarrassed by his moment in the limelight.
But it was worth doing. Amid all the computer screens and transcript binders and dozens of lawyers, it's easy for the three of the four defendants who aren't larger than life British peers to get lost amid the clutter.
Moral seriousness is more effective than comedy. For 40 bucks a day (which is what the jurors get), who wants to listen to gags and lawyer banter for months on end? Forty bucks a day is only worth it if something serious is at stake. Like a human life. Or four lives.
Mr Schachter made that point.
The dogs that weren't allowed to bark
Mark Steyn June 25, 2007 12:43:59
The biggest single "theft" by Peter Atkinson is the non-compete payment fom CanWest. As Michael Schachter reiterated just now, "CanWest requested a non-compete agreement from Peter. You've heard overwhelming evidence to that effect." Evidence from the government's own witnesses.
More to the point, if they're so convinced CanWest didn't want a non-compete from Peter, why didn't they call Leonard Asper, CanWest's CEO, or David Asper, or CanWest's lawyers?
Because they can't.
The fraudulence in this case is not Atkinson's but the selective and implausible construction imposed by the government.
Through a glass darkly
Mark Steyn June 25, 2007 12:30:11
Michael Schachter on the US Attorney and his team:
"It's as if they look out at the world through dirty windows. Everything they see looks dirty, no matter what the witnesses say, no matter what the documents say, no matter what the truth is."
Indeed. Counsellor Schachter opened up some serious detergent on their dingy lites, but the dirt's on the inside of the glass.
Observing the niceties
Mark Steyn June 25, 2007 11:54:11
To a foreigner, the rituals of this court are a little befuddling. In contrast to the somewhat formal courtesies between the Crown and counsel for the defence in a Commonwealth court, during intermission there's a lot of Friars Club schmoozing between the teams like a pro-celeb charity golf tournament. But the minute the jury's in and the defence is up and counsel is scoring points, the government's behaviour is very boorish. As Mr Schachter grew splendidly impassioned this morning, prosecutors Sussman and Ruder settled into their trademark smirks and their macho enforcer Jeff Cramer sunk glowering into his chair as if only supreme effort of will was preventing him breaking off the table leg and cracking these punk defendants' skulls.
A little more majesty-of-the-law shtick wouldn't be amiss in this system.
The scheme thickens
Mark Steyn June 25, 2007 11:33:26
"These are schemers?" marveled Mr Schachter, after quoting another email exchange between two of the defendants: Peter Atkinson sends an email suggesting a form of words for SEC disclosure and Jack Boultbee writes back to say that's fine but he'd prefer even more disclosure. In fact, the extra bit of disclosure Jack wanted had already been disclosed. So Peter copies the lawyers and tells them to agree it all with the auditors as he's going on vacation.
"Does this," suggested Mr Schachter, "look like the email of a man whose criminal scheme is about to be revealed?" As Atkinson's counsel pointed out with great brio and spirit, he's not running around saying, "Oh, no, the scheme's unraveling, the jig is up, we're all done for!"
It was a well-made point. The jury is attentive but they're not taking a lot of notes. Good sign or bad?
Good point
Mark Steyn June 25, 2007 10:39:53
Michael Schachter on his client and Hollinger senior counsel Peter Atkinson:
"So Peter hires the best law firm in the United States to work with the best law firm in Canada on this issue. That's not the act of someone trying to conceal his criminal scheme."
But who will lawyer the lawyers?
Mark Steyn June 25, 2007 10:28:39
Michael Schachter has just made the point that every word in a document the government says is fraudulent and for which his client faces three decades in jail was written in its original draft by Beth DeMerchant of the Torys law firm.
This case demonstrates not the need for "corporate governance" but the failure of corporate governance - of independent directors, of lawyers, of auditors. To reprise once more the old song, "Who Takes Care Of The Caretaker's Daughter While The Caretaker's Busy Taking Care?" Who gives advice on the outside lawyer's advice while the outside lawyer's outside giving advice?
Mr Schachter has a palpable disgust at the contortions the government put the evidence through in order to make its case.
Re-lawyering up
Mark Steyn June 25, 2007 10:08:22
I may have spoken too soon when I said this would be the last day we'd hear from the lawyers. Michael Schachter, counsel for Peter Atkinson, still has a couple of hours to go, and then Ron Safer takes the floor and may go till tomorrow. Judge Amy suggested they snap it up a bit, which struck me as a bit rich. Why not offer to shave a decade off the sentence for every hour they cut from the closing argument? It's a little much to argue that the government has the right to threaten you with a century in jail, investigate you for years and put on witnesses for months on end, but the defence has gotta wrap it up in 90 minutes.
On the other hand, timing is everything. If the defence finishes at 5pm, allowing prosecutor Sussman to start fresh in the morning, that hands a significant advantage to the other side. On the other other hand, if you drag things over to avoid handing them that advantage, you'll be trying the jury's patience rather than the case - and, in closing arguments that have tended to focus on the trees rather than the forest, there may have been a bit too much of that already.
And on the other other other hand, if Judge Amy had granted Ron Safer's motion to dismiss the charges against her client, she wouldn't have to worry about him taking up the rest of the day. Given the glacial (and cruel if no longer unusual) pace at which the wheels of US justice turn, the notion that time is suddenly at a premium is a little perverse.
On the other other other other hand I'm sitting here killing time by typing about how the lawyers are killing time...
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