May 22, 2007
Radler's Finished -- Did He Help or Hurt the Prosecution?
David Radler completed two weeks of testimony in the prosecution of Conrad Black and three other defendants accused of defrauding Hollinger International, taking more than a few lumps from the defense side. Whether his credibility held up is an open question, and media reports (here and here) provide definite mixed reviews, kind of like the reaction to Shrek the Third. Black's lawyer, Edward Greenspan, probably used every synonym available for "liar" and hit that theme repeatedly, a point Radler readily conceded. Too much focus on Radler's conniving presents Black with a bit of a problem because the jury could take a "birds of a feather flock together" approach to the two men. Others saw Radler as being left by the side of the highway as roadkill, unable to recall what he testified to earlier. Black himself made a short statement (here) after Radler finished his testimony, stating that the prosecution was "hanging like a toilet seat around their necks, that "this is war," and "“I’m on an inexorable march to victory . . . I see the trend, my strategy is working.” Such boasting before the prosecution rests likely makes the defense lawyers cringe. Yet the attorney for Mark Kipnis, former Hollinger general counsel who is the only non-Canadian among the defendants and the lowest-level of the defendants, scored points for his client when Radler testified (here) that Kipnis' bonus had nothing to do with the non-compete agreements at the heart of the case. That admission plays into the defense that Kipnis had no stake in the alleged fraud and was the unwitting dupe in the transaction, providing legal services but otherwise was far from the decision-making process.
So, did Radler help or hurt the prosecution? Without his testimony, the government did not have much of a case because there is no direct evidence that the non-compete payments were part of a scheme to divert Hollinger's assets for personal use. Radler provided the "inside" look at the process, and gave direct evidence, if he is to be believed, against Black primarily and co-defendants Atkinson and Boultbee -- but not much help with Kipnis. He is the key witness for the government, although prosecutors will not hang the entire case on him because of the obvious credibility problems that accompany an admitted liar. After Radler, the government called the lawyer who led Hollinger's internal investigation of the payments that began the process leading to the charges, and he testified about statements made by the defendants that appear to be less than truthful. It is at this point that the government has to provide the credible evidence to back up Radler's story. As Black's long-time lieutenant, Radler can make or break the government's case, because he provides the missing link to show the intent to defraud, the key to the case. Whether the jurors believe him is another question. (ph)
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