So where's the payoff?

By Charlie Gillis - Thursday, September 30, 2010 at 9:40 AM - 0 Comments

Michael Sohn/AP

On paper, it’s been a good year. Germany’s economy is cruising at an enviable clip. Employment is up, inflation is in check and Chancellor Angela Merkel is showing a talent for keeping her head while others about her are losing theirs. During last spring’s Greek debt crisis, for instance, the German leader proved just stubborn enough—exacting commitments from Greece to overdue financial reforms in exchange for a loan package that headed off financial crises across southern Europe. Some experts credit her with preventing a double-dip global recession.

Where, then, is the political payoff? Far from winning hosannas for their firm hand during choppy economic times, Merkel and her Christian Democrats watched this summer as their public support dwindled to record lows, raising questions as to whether Germans have turned their back on the girl from Brandenburg with the smiling eyes and iron fist. Polls taken over the summer suggest only 12 per cent of Germans are satisfied with the government’s performance, while Merkel herself has suffered her lowest personal approval ratings since she assumed office. “A lot of people are unhappy, and her leadership style is part of the problem,” says Gerd Langguth, a former member of the Christian Democrats and author of a biography of the 56-year-old politician. Suspicious of long-term vision yet shackled to deputies with their own ideological agendas, Merkel increasingly finds herself fighting internecine battles within her governing coalition, Langguth says, and each one has exacted a toll. “In Germany, no chancellor can expect people to follow her direction just because she tells them to. She’s learning what [Gerhard] Schröder and [Helmut] Kohl learned before her.”

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Aaron Sorkin gives Facebook's Mark Zuckerberg a poke (Q&A)

By Brian D. Johnson - Thursday, September 30, 2010 at 9:28 AM - 0 Comments

NEW YORK - SEPTEMBER 29: Screenwwriter Aaron Sorkin attends Columbia Pictures' and The Cinema Society's screening of 'The Social Network' at the School of Visual Arts Theater on September 29, 2010 in New York City. (Photo by Stephen Lovekin/Getty Images)

Screenwriter Aaron Sorkin, best known for television’s The West Wing, wrote the script for The Social Network, which opens this weekend. Directed by David Fincher (Fight Club), it’s the story of how Facebook mogul Mark Zuckerberg built a multi-billion-dollar empire from an idea hatched as a dorm room prank at Harvard—while triggering two lawsuits and turning his best friend into an enemy. I interviewed Sorkin by phone from New York City on Sept. 24.  My article about the movie, and the writer, appears in this week’s Maclean’s. Here’s a transcript of our talk:

Q. I can’t remember when I’ve heard so much fast, smart talk in a movie. The dialogue in The Social Network is like a form of action. It really rips along.

A. I have to give David Fincher credit for that. There are scenes in this movie that play like a bank robbery, because only David can do that.

Q. OK, Let’s get straight to the controversy.

A. Hang on, is there a controversy that happened while I was sleeping?

Q. The problem is, I’ve been spending too much time on the Internet.

A. That is the problem. I don’t even know what the problem is but that’s the reason.

Q. What did you have to take out of the film because of objections from Facebook.

A. Nothing, let’s be really clear about that. Zero. We aggressively courted Facebook’s participation a couple of years ago when this whole thing started. There was a lot of negotiating but in the end they did exactly what I would do: they declined.  I told them whether or not they participated I would show them the script when I was done writing it, and I got their notes. Their notes were almost entirely about hacking, certain hacking terminology. There was absolutely nothing taken out of the movie because of Facebook. There were certain frames taken out of the movie to get us the PG rating from the MPAA.

Q.Those were the scenes of cocaine being snorted on bare breasts?

A. It’s more of a background shot that you see the cocaine being used and laid out and we took out a few frames where it was in the foreground.

Q. Facebook  had notes only about hacking?

A. Yes, hacking terminology.

Q. But Zuckerberg has called the movie fiction.

A. And I’d be doing the same thing. I believe their PR people are every bit as good as ours. There were 2 lawsuits brought against Facebook at roughly the same time. The defendant, the plaintiffs, the witnesses, they all went into deposition rooms, they  all swore an oath, and what we ended up with were three very different versions of the story. So at any given time, at least two of them are going to be wrong. Rather than picking out and decided that one’s the truth, I’ll dramatize that, or this one’s the sexiest, I’ll dramatize that, I really liked that there were three conflicting stories . I wanted to do it Rashoman-like. That’s  how I came up with the structure of the deposition rooms  and everyone challenging everyone else’s fact. The first words out of Mark’s mouth when we’re in the deposition room for the first time is “that’s what’s not happened.” And the movie of course ends with the scene of Rashida [Jones] saying, “Creation myths need a devil.” If I were Mark I would want the story told only from my point of view. But it was told from Marks’ point of view as well as Eduardo Saverin’s and Tyler and Cameron Winklevoss’s. Facebook’s beef isn’t with the movie, it’s with the people who sued them and what they said.

Q. Regardless of the Roshoman approach—and that the film offers multiple points of view, anybody seeing it would conclude that Eduoardo is the good guy and Zuckerberg is an asshole.

A. People are going to conclude that it’s a little more complicated than that. But let me further back up the non-fiction cred of this movie. There are a lot of legal documents I had at my disposal. And there is a lot of first- person research. I had conversations with most of the characters portrayed in the movie, most on the condition of anonymity. Moreover, with a script like this—non-fiction about people who are very much alive and who have shown they don’t mind suing people and who have the resources to scringe you to death—the movie was vetted to within an inch of its life by a legal team that doesn’t care if the movie is good or bad and doesn’t care if it sells any tickets. All they care about is making absolutely sure that I don’t say anything that is both untrue and defamatory. Continue…

If all else fails, call the Queen

By Aaron Wherry - Thursday, September 30, 2010 at 9:25 AM - 0 Comments

So perhaps, as reported in Lawrence Martin’s new book, the Prime Minister contemplated the possibility of appealing in some way to the Queen in the event that the Governor General refused his request for prorogation in December 2008.

While the source of that claim says the information he offered was “torqued,” the Prime Minister’s Office is going after the author’s credibility.

Bestsellers

By Brian Bethune - Thursday, September 30, 2010 at 9:00 AM - 0 Comments

Top-selling fiction and non-fiction titles (week of September 27th, 2010)

Fiction

Non-fiction

LAST WEEK (WEEKS ON LIST)

Politics big-city elites, you say. Sound familiar at all?

By Andrew Potter - Thursday, September 30, 2010 at 9:00 AM - 0 Comments

Michael Caronna/Reuters

When government House leader John Baird claimed last week that Toronto-based “elites” were behind the push to save the long-gun registry, it had the desired result: Baird was loudly mocked all the way from Front Street to Eglinton Avenue, which pretty much proved his point. But it also marked the final transition of the federal Conservatives into an intellectual branch plant of the Republican party of the United States.

The storyline of the summer was the emergence of the federal Conservatives as a party committed to principled ignorance. Whatever the issue—crime, climate change, the census—the government has made it a point of pride to actively ignore facts, research, and expert opinion. Baird’s crack about “elites” is part of a strategy that believes there is little to be gained in politics by having good ideas and implementing evidence-based policies. Instead, the key to success is being able to control the meanings of words used in political discourse.

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MPs help battle bullying at Egale's gay rights gala

By Mitchel Raphael - Thursday, September 30, 2010 at 8:45 AM - 0 Comments

The gay rights group Egale held their second annual gala at Toronto’s Royal York Hotel. The gala honoured TD bank CEO Ed Clark with a leadership award. The night raised money for the programs to battle homophobic and transphobic bullying in schools. Below, Tory Senator Nancy Ruth (left) and singer Carole Pope.

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CBC anchor Andrew Nichols (left) and Salah Bachir.

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Senator Linda Frum (right) and her husband Howard Sokolowski.

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Former New Zealand MP Georgina Beyer (left) and NDP leader Jack Layton.

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Top Tory staffer says goodbye

By Mitchel Raphael - Thursday, September 30, 2010 at 7:45 AM - 0 Comments

Jamie Ellerton (below), longtime aide to Immigration Minister Jason Kenney held his goodbye party at The Buzz in Ottawa. Ellerton, one of the Tories’ top staffers, is now the executive assistant to Ontario Progressive Conservative leader Tim Hudak.

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Immigration minister Jason Kenney.

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Government House Leader John Baird.

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The House of Commons is profoundly sad at Maclean's

By Aaron Wherry - Wednesday, September 29, 2010 at 7:56 PM - 0 Comments

This evening the House of Commons unanimously passed a motion censuring expressing its profound sadness at this magazine. The following is the submitted text of that motion.

That this House, while recognizing the importance of vigorous debate on subjects of public interest, expresses its profound sadness at the prejudice displayed and the stereotypes employed by Maclean’s Magazine to denigrate the Quebec nation, its history and its institutions.

Independent MP Andre Arthur reportedly objected to the motion, then left the chamber, allowing the motion to be re-introduced and passed.

The Commons: Treated like children, no more

By Aaron Wherry - Wednesday, September 29, 2010 at 7:01 PM - 0 Comments

The Scene. Shortly after Question Period began this afternoon, the Prime Minister rose and, without warning, announced a dramatic change in the direction of the country.

“We will treat the public like adults,” he vowed. “That is how we are going to conduct business in this country.”

He did not immediately clarify how this change will be implemented—a shift of this magnitude requiring nothing less than a completely new understanding of national governance and the public space. Nor did he say when he expects this edict to take effect.

Presumably, no matter how committed Mr. Harper is to this idea, it will have to wait until after the debate on the census has subsided. Continue…

U.S. judges grill lawyers in Conrad Black case

By Luiza Ch. Savage - Wednesday, September 29, 2010 at 5:11 PM - 0 Comments

This morning’s oral hearing at the Seventh Circuit Court of Appeals in Chicago brought together two top American legal minds, conservative Judge Richard Posner and lawyer Miguel Estrada (whose own nomination to a federal appeals court by George W. Bush was blocked by Democrats). The hard-charging U.S. Attorney Patrick Fitzgerald had his name on the government’s briefs but did not argue the government’s case in person. The question before them was whether the U.S. Supreme Court’s decision in June to dramatically narrow the definition of “honest services” fraud meant that the conviction of Black and his associates should be reversed because the jury could have convicted them based on a legal definition of fraud that was no longer valid.

Because Posner was so aggressive in his questioning of the lawyers, it is hard to say what the other two judges on the panel might have been thinking. Were they silent at times because Posner was already asking the questions they wanted answered, or because they accepted the lawyer’s position? In a nutshell, Posner seemed to resist the argument that Black and the others should be cleared of one count of fraud for pocketing $600,000 from the sales of Hollinger properties to newspaper-buyers Paxton and Forum that were not authorized by the Hollinger board. But both he and Judge Diane Sykes seemed to have more sympathy for the defendants’ case that they should be cleared of two counts of fraud for taking $5.5 million payments relating of a sale of other Hollinger properties to American Publishing Company. Finally, Posner and Sykes seemed skeptical of Black’s argument that his obstruction of justice conviction (for improperly removing 13 boxes of documents from his office) should be reversed.

Here is how the hearing unfolded: Continue…

Chasing an answer when it doesn't matter what you say

By Aaron Wherry - Wednesday, September 29, 2010 at 4:18 PM - 0 Comments

Nearly two years after walking away from a proposed coalition and a year after stating his disinterest and three months after stating his intention to form a Liberal government, but also after stating that coalitions are entirely legitimate in Parliamentary democracies, Michael Ignatieff says “there is no coalition, period.”

Les Québécois méritent mieux que ça

By the editors - Wednesday, September 29, 2010 at 4:15 PM - 0 Comments

Francis Vachon/CP

La semaine dernière, Maclean’s consacrait sa une à un article sur la politique au Québec intitulé “La province la plus corrompue du Canada.” Dans une chronique qui accompagnait l’article, Andrew Coyne prédisait que notre travail, tout comme la majorité des critiques de la société québécoise issues de l’extérieur de celle-ci, serait dénoncé par la classe politique de la province comme du “Québec bashing” (dénigrement systématique du Québec).

Il avait vu juste. L’article a été attaqué avec virulence par tous les politiciens qui se sont trouvés à proximité d’un microphone. Le chef du Bloc Québécois, Gilles Duceppe, a traité l’article de “xénophobe.” Le président de la Société Saint-Jean-Baptiste de Montréal, un organisme souverainiste, l’a décrit comme “haineux et diffamatoire.”

Le premier ministre du Québec, Jean Charest, qui venait tout juste de témoigner devant une commission d’enquête sur la corruption, nous a envoyé une lettre pour exiger que nous présentions nos excuses aux Québécois. Le chef libéral Michael Ignatieff a fait chorus, selon toute apparence sans avoir lu l’article.

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We believe Quebecers deserve better, and they seem to agree

By the editors - Wednesday, September 29, 2010 at 3:30 PM - 0 Comments

Francis Vachon/CP

[Cliquez ici pour lire la version française]

Last week, Maclean’s ran a cover story about politics in Quebec entitled, “The most corrupt province in Canada.” In an accompanying column, Andrew Coyne predicted that our work, like most criticisms of Quebec society coming from outside the province, would be attacked by its political class as “Quebec bashing.”

Quite so. The story was loudly and stridently denounced by every politician within reach of a microphone.

Bloc Québécois Leader Gilles Duceppe claimed the story was “xenophobic.” The head of the sovereignist organization Société Saint-Jean-Baptiste de Montréal called it “hateful and defamatory.”

Quebec Premier Jean Charest, fresh from his appearances before a corruption inquiry,  sent us a letter demanding that we “apologize to Quebecers.” Liberal Leader Michael Ignatieff joined the chorus apparently without having read the article.

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Canadian auto sales on track for record year

By macleans.ca - Wednesday, September 29, 2010 at 3:21 PM - 0 Comments

A new report by Scotia Economics suggests Canadians are buying new and used cars at a record pace. New and used auto sales combined could reach as high as 4.4 million vehicles this year, beating 2007′s record-setting 4.3 million sales. “While fleet volumes have only recently started to improve, purchases by Canadian households began to rebound last year, and are currently on a near-record pace,” says report author Carlos Gomes. “In fact, we expect 2010 retail volumes to climb to the second-highest annual level on record — only behind the 2008 peak.” Despite the healthy rebound in auto sales in Canada, the sector is still struggling due to weak sales in the U.S. and Western Europe.

Vancouver Sun

"There is no coalition, period"

By macleans.ca - Wednesday, September 29, 2010 at 3:09 PM - 0 Comments

Liberal leader Michael Ignatieff categorically rejected the notion he’d formed a coalition with the NDP and the Bloc Québécois to defeat the Conservative government. “There is no coalition, period,” Ignatieff said. “What there is is a big red tent, a Liberal Party that is going to defeat this government at the next election. That’s what they’re actually afraid of, right?” Prime Minister Stephen Harper and his cabinet ministers have for weeks been repeating that the choice Canadians face in the next election is between a Conservative majority and a coalition. Last week, for instance, Finance Minister Jim Flaherty referred to the “Ignatieff-Bloc-NDP coalition” 14 times during a speech in Ottawa.

CBC News

European authorities threatens France over Roma expulsions

By macleans.ca - Wednesday, September 29, 2010 at 12:52 PM - 0 Comments

Europe is threatening to punish France for its expulsion of Roma, giving Nicolas Sarkozy’s government two weeks to abide by the EU’s protections on freedom of movement. “The Commission considers that France has not yet transposed the directive on free movement into national legislation that makes these rights fully effective and transparent,” read a statement from the European Commission. Should France fail to respond by October 15, it could theoretically find itself facing infringement proceedings at the European Court of Justice. The French government has already expelled some 1,700 Roma to Romania and Bulgaria.

AFP

Standing up to imagined tyranny

By Aaron Wherry - Wednesday, September 29, 2010 at 12:45 PM - 0 Comments

Yesterday’s House debate on the census starts here. The following is the first government interjection and the response from Liberal Marc Garneau.

Mr. Steven Blaney (Lévis—Bellechasse, CPC):  Madam Speaker, I have a question for the member from Westmount—Ville-Marie. I was very interested in what he had to say, and one word in particular struck me, the word “ridiculous” . I am sure that the member opposite will agree with me when I say that it is ridiculous to put honest citizens in jail for refusing to say how many bedrooms they have in their houses or even what kind of cereal they eat in the morning. That is the issue before the House. How can we collect useful data without infringing on individual freedoms? I would like to know whether the hon. member is ready to work with the government, as he has done in the past. Two questions have been added to the short form to collect information for validation purposes, information that will be useful to all Canadians. Is he ready to propose real solutions and to acknowledge that society and individual freedoms have evolved?

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U.S. stem cell funding to continue

By macleans.ca - Wednesday, September 29, 2010 at 12:30 PM - 0 Comments

The U.S. Court of Appeals for the District of Columbia Circuit has allowed federal funding for human embryonic stem cell research to continue pending a full appeal, Reuters reports, lifting a federal judge’s injunction. After Judge Royce Lamberth ruled guidelines on this research violated law because embryos were destroyed in the process, the Obama administration challenged the ruling, asking the appeals court to put it on hold pending its decision on the merits of the dispute. Government lawyers warned dozens of research projects would be ruined if funding was cut, wasting millions of taxpayer dollars.

Reuters

'History will judge'

By Aaron Wherry - Wednesday, September 29, 2010 at 12:15 PM - 0 Comments

Yesterday afternoon I sat down with the Governor General for one of her final interviews before she leaves Rideau later this week. A fuller accounting of that conversation will appear in this week’s issue of the magazine, but for now, here is what was asked and what was said about the decision to grant the Prime Minister’s request to prorogue Parliament in 2008. Continue…

Why TV Still Needs Mainstream Hits

By Jaime Weinman - Wednesday, September 29, 2010 at 12:13 PM - 0 Comments

The cancellation of Lone Star has touched off, in addition to the usual irritating snobbery, some discussion about whether there’s room for “risky” shows on broadcast TV, moving from there to the question of whether it matters — with so many good shows on cable, and with cable shows increasingly available online to the people who don’t have cable, is it really important where a good show runs, as long as it runs?

Leaving aside the question of how risky or good Lone Star was (we’ll never really know, since it didn’t run long enough), I think the answer is yes, even now, there is a need for great mass-entertainment shows, the kind that speak to the wide audience that only broadcast TV has access to. (Let’s remember, again, that the terrible numbers for Lone Star would be a huge viewership for all but a select few cable dramas. Even with audience fragmentation, broadcast still has a wider reach.) One reason for this is just the fun of the water-cooler effect. When a show combines broad popularity with quality, it becomes part of the shared cultural experience.

Yes, there are ways for a cable show to break into the cultural consciousness, though it’s sometimes debatable how much this happens. James Poniewozik says that “A show like Jersey Shore or Mad Men is arguably much more widely discussed, though not more widely watched, than NCIS,” but while that is true of Jersey Shore — largely because, like many reality shows, it penetrates into the gossip magazines and syndicated gossip shows, and therefore has reach far beyond cable television — I’m not sure how much of an impact Mad Men is really having, beyond those articles about a mild resurgence of interest in ’60s fashions. Its imprint on our cultural DNA remains small compared to, say, CSI, which completely changed and distorted the way we think about crime solving. Even something that’s widely mocked, like David Caruso’s one-liners, is a sign of a show that really reaches people; when a show is actually good, the mannerisms of the characters become almost the stuff of legend.

The other reason why there’s something special about a mainstream broadcast hit is that there are things they can do that no cable show can do. The most important thing, in my opinion, is the ability of mainstream mass-market television to have an impact on society; that’s the thing that many people have always celebrated and feared about TV, that it can reach so many people (who don’t have to pay for the shows themselves) and influence them. Not that TV can change attitudes alone. TV tends to take things that are already in the air — trends that the networks want to cash in on — and put them on the air. But by making TV shows about these things, Hollywood re-enforces them, making it harder for those trends to be turned back. That’s what the infamous Parents Television Council understands with its campaigns against “sinful” material on network TV: once attitudes become mainstreamed by TV, it’s hard to un-mainstream them.

Richard Nixon was another person who understood this, sort of; after All In the Family started, he and his aides spent several minutes in the White House discussing an episode they’d seen, with Nixon worrying that “the box” would influence kids to be more tolerant of homosexuality, while his aides seemed more worried that it was making conservative Nixon-loving hard-hats out to be idiots. On the opposite side of the political spectrum, liberals point out that TV has contributed to hard-line attitudes toward crime — since there has hardly ever been a TV hero since the ’60s who acts as if suspected criminals have any rights — and that 24 gave audiences, and even Supreme Court justices, an example to point to when they wanted to argue for the necessity of torture. It’s not that seeing Jack Bauer single-handedly turns people’s attitudes around; it’s just that he was on TV every week, he was widely known, and he was a more potent argument for certain ideas and attitudes than any newspaper editorial could ever be.

So a TV show that reaches large audiences, and broad audiences, has a power that niche shows don’t. The Wire was a great show, and one that wanted to get people angry and make them question their attitudes and preconceptions. But it could never have the kind of power it hoped to have — the power that gets ordinary people everywhere arguing about the ideas presented, or Presidents worried that it will change people’s attitudes (President Obama likes The Wire, but unless some tapes come out, I doubt he sits around worrying about its impact on society). Because not many people watched it, it had an unforgettably powerful impact on those who did watch it, but not much success in bringing about social or political or cultural change. Whereas a show like Will & Grace – a compromised, censored, mainstream entertainment — may have had genuine social impact simply by helping to mainstream the idea that gay people were normal. It didn’t create today’s slowly-increasing acceptance of gay rights among younger people, but like all mainstream hits, it both followed a trend and helped drive it.

This is not a knock on The Wire, because that show could never have been what it was on a broadcast network, not artistically. But if a creator wants to use the power of television to shape the culture or promote ideas, then broadcast is usually the place for it. (Not that cable can’t help, of course — for example, not many people watch cable news, but by promoting certain ideas and viewpoints, it feeds into and helps shape the coverage on the more-widely-watched broadcast and local news.) Cable is the perfect place for internal psychodrama or the exploration of questions about human life and human identity: Breaking Bad is a perfect cable show because, while it is in part about the modern world and the problems that we face every day, it’s primarily about examining one man falling apart under extraordinary circumstances.

The great broadcast shows can be about people, and about ideas, but many of them are also about trends, attitudes, modern life as we live it. All in the Family, Mary Tyler Moore and M*A*S*H were all about what was going on in the world right at that moment, in the early ’70s (yes, M*A*S*H was set in the ’50s but it wasn’t trying to fool anybody). Even a show as completely frivolous and cheesy as Charlie’s Angels presented itself as being a response to social changes in its era: depending on what you wanted to read into it, it was either about women using their sex appeal to be empowered, or a retreat back into the good old days when women took orders from men. Look at the current broadcast hits — the prodedurals, the comedies, whatever Glee is — and you’ll find a lot of topicality even if the references are not topical. Ripped-from-the-headlines stories, investigations into murders that take place in carefully-chosen, recognizable situations, reflections of our anxiety about technology or family life or romance; this is the stuff of the broadcast hit. It doesn’t try to dig deep into the human psyche like cable often does, but that’s not what it’s about. It’s about the externals of daily life, the stuff we can recognize from our experience or our neighbours’.

Is broadcast TV doing all it can do within its limitations? Of course not, and that’s why even people who mostly watch cable should want broadcast TV to do better, because cable simply can’t pick up the slack. Shows that bring socio-political issues into a wide range of homes, shows that reflect back on life as it is currently lived and challenge us to re-examine the mundane details of life, and just plain fun shows that everyone at the office seems to be watching; these are what broadcast can give us at its best. Cable TV can give us a great artistic experience at its best — but broadcast TV can change the world.

What to think about where we're going

By Aaron Wherry - Wednesday, September 29, 2010 at 9:38 AM - 0 Comments

Alex Himelfarb contemplates the future of government.

One constant theme was the need to rebuild trust, not blind trust of course, not even deference, but enough trust to enable cooperation and collective action when these are clearly in our interests. Of course, this means reinventing government, closing the gap between civil society and government, developing private-public partnerships, focusing on those things that only governments can do and encouraging non-governmental solutions where possible. In the past, governments have been able to reinvent themselves to suit the times. But how can any of this happen in a climate of anger, cynicism and distrust? How can any of this happen when government doesn’t want it to happen? What are we to think?

Don't give students more tools of mass distraction

By macleans.ca - Wednesday, September 29, 2010 at 9:04 AM - 0 Comments

Dominik Butzmann/laif/Redux

The role of technology in the classroom has no doubt been a contentious issue since the first Roman student brought an abacus to his grammaticus. Using the most up-to-date equipment in school has always seemed to be a necessity. And yet the process of learning hasn’t really changed that much since ancient times: teachers still need to teach and students still need to pay attention.

Last week Ontario Premier Dalton McGuinty sparked a national debate on the role of technology in Canadian classrooms. Asked about a proposal to relax a ban on cellphones in the classrooms of Toronto-area high schools, the premier seemed rather agreeable to the idea. “Telephones, BlackBerries and the like are conduits for information and one of the things we want our students to be is well informed,” he said. “It’s something we should be looking at in our schools.”

Continue…

Conrad Black case goes back to court (UPDATED)

By Luiza Ch. Savage - Wednesday, September 29, 2010 at 8:09 AM - 0 Comments

Lawyers for Conrad Black return to court today in Chicago in what could be the climax of his long legal battle for his freedom.

They have already achieved the improbable – persuading the United States Supreme Court to take up Black’s appeal (the court grants only about four percent of petitions that come its way) – and the more unlikely still, getting a 7-2 decision in their favour. Today they are seeking to use the new precedent from the top court to have the convictions reversed. Black is has been out of prison on bail pending the decision. He has served more than two years of a six and a half year sentence.

On June 24, the US Supreme Court ruled that part of the law used to convict Black, along with other Hollinger executives, Peter Atkinson, John Boultbee and Mark Kipnis, of fraud, was so broad as to be unconstitutionally vague. The court remanded the case back to the appeals court to decide whether a jury instructed on the narrower definition of fraud, and faced with more limited evidence, would have still convicted Black and the others, or whether the legal error was merely “harmless.”

The case comes down to this: the jury had been instructed that fraud had two aspects to it: the theft of money from the corporation and the denial to the corporation of the “honest services” of its executives. The Supreme Court said that the honest services theory of fraud had come to be defined too broadly in American law. In a June opinion, the Supreme Court said that to be convicted of honest services fraud there has to be evidence of a bribery or kickback scheme – neither of which were alleged in the case of Black and his associates.

The jury that convicted the defendants did not explain what theory of fraud it based its convictions on: theft, denial of honest services, or both. Black’s lawyers have asked the Seventh Circuit Court of Appeal to reverse the convictions of the executives’ on the grounds that it is possible that the jury found them guilty on the theory of fraud that the Supreme Court has now said was incorrect. Federal prosecutors argue that the evidence of theft was “overwhelming” and that the legal error in the jury instruction on honest services would not have made a difference. In other words, that the error was “harmless.”

Below are several of the basic disagreements presented in the legal briefs that the court will have to sort out:

1. What does the government have to prove to show the error was “harmless”?

• a. The government says it needs to show that “rational jury would have found the defendant guilty absent the error.”
• b. Black’s lawyers argue that the government must prove that not even one juror voted to convict based on the incorrect theory of fraud. The court must reverse the convictions “if there is a reasonable possibility that the error complained of might have contributed to the conviction.”

2. Was the jury told that they could convict for a denial of “honest services” even if they did not find evidence of theft?

• a. Black’s lawyers argues that prosecutors incorrectly led the jury to believe that they could convict of honest services fraud if the defendants had failed to make proper disclosures to the Board and its Audit Committee, thus “permitting a guilty verdict even if no juror through that the defendants schemed to steal money.” They argued that rather than stealing money, the defendants falsely categorized millions of dollars in management fees (that were rightfully owed the defendants) as non-compete payments in order to escape Canadian taxes, but that this did not defraud shareholders.
• b. The government responds that it never told the jury that they could convict in the absence of theft. The government had argued that “defendants stole Hollinger International’s money by making false representations, that is, by disguising money they stole as non-competition payments.” Prosecutors say they never argued that there was an “independent, stand-alone honest services violation that the jury should use to convict defendants.”

3. Was the jury so persuaded by the government’s evidence of theft that they would have convicted regardless of the definition of honest services?

• a. Blacks’ lawyers argue no.
  • i. The fact that the jury acquitted the defendants on 9 fraud counts, two tax counts, and (Black only) a racketeering charge that “turned on theft” shows that “the jury in this case was deeply skeptical of the government’s witnesses and theories.” The jury’s “sweeping rejection of the government’s theft theories” implies that the jurors convicted on the basis that the defendants violated “honest services” by failing to make purportedly required disclosures or by not placing corporate interest above all else.
  • ii. The government’s “own star witness,” David Radler, said there was no theft in the transaction at issue. Payments that the government argues were fraudulent non-compete payments were merely management fees disguised as non-compete payments because such payments had recently been made tax-free by Revenue Canada.

• b. The government makes the case that there was strong evidence that executives pocketed millions in fake non-compete payments from a company that owned only a tiny paper called the Mammoth Times and lied about it to the company. (The defense argues that the non-competes covered all affiliated newspapers, which numbered in the hundreds.)
  Further, prosecutors told the jurors they could only convict if they found “unfair dealing” or an “unfair price” in the transaction. Therefore, if the jurors believed that the money was merely mis-labeled management fees owed to the defendants, there was no unfair dealing or unfair price and they would not have found fraud. The convictions therefore imply that the jurors did not believe the defendants explanations regarding the payments and must have considered them to be stolen money.
  The government responds that Radler was hardly their star witness and that the jury was told they could conclude he was lying and still convict.

4. Did the evidence on honest services make the jury more likely to view Black’s removal of 13 boxes from his Toronto office as an attempt to obstruct justice?

• a. Black has maintained all along that he was removing the boxes because he was being evicted from the premises. He had no criminal intent, he argues. He had already complied with five document requests, producing more than 112,000 pages of documents. Lawyers had already spent weeks photocopying everything in the office. His lawyers had not told him that a new document request had been made by the Securities and Exchange Commission so he could not have been trying to hide the documents.
• b. The jury’s view of his actions was tainted by the reams of evidence that established his non-disclosure which now is not a crime.
• c. If the fraud convictions are struck down, his lawyers ask for the 78-month sentence to be lowered.
  The government argues that the evidence of obstruction is “strong”: “Everything the defendant did in sneaking out the boxes was evidence of corrupt intent.”

UPDATE:

First impressions….

It was a mixed bag for Conrad Black’s legal case this morning judging by the questions asked by the three judges in a rapid-fire oral argument that lasted just over 40 minutes.

• The judges seemed skeptical that his obstruction of justice conviction should be overturned. In one instance Judge Posner said bluntly, “I don’t see a connection” between honest services fraud and the obstruction conviction.
• Judge Posner repeatedly expressed doubts about overturning a fraud conviction relating to $600,000 in payments pocketed by the defendants in deals with Paxton and Forum.
• Judges Posner and Sykes seemed more sympathetic to reversing the fraud conviction relating to $5.5 million in fees paid to the defendants in the deal with APC.

More to come…

Make your own Commons

By Aaron Wherry - Tuesday, September 28, 2010 at 6:43 PM - 0 Comments

No sketch today on account of commitments elsewhere.

In lieu, here is today’s exchanges between Marlene Jennings and Carolyn Bennett with Tony Clement on the subject of the census. Add your own world-weary bemusement. Continue…