A lot of my chums on the media benches remain convinced Conrad Black is guilty of something. It’s just that, with every day the prosecution presents its case, it’s getting harder and harder to say of what. Mr Sussman, the boyish charmer on the government side, dutifully refers to the defendants as “co-conspirators”, but for a good conspiracy you have to have someone to conspire against. And, with each prosecution witness, it seems clearer that just about everybody was in on this conspiracy. Fred Creasey testified earlier this morning and, prompted by the government, gave a picture of feverish activity in Toronto in October 2003 as he attempted to find out what these non-compete payments were, to whom they’d been paid, and whether they’d been properly disclosed. In other words, he was the Plucky Low Level Manager struggling to find the truth in a fog of obfuscation. Fine stuff.

Defence counsel then rose and reduced this testimony to a heap of rubble. Mr Creasey had signed an 8K disclosing the non-competes, and to whom they were paid, three years earlier. He had sat in on multiple meetings on multiple Audit Committee meetings in both New York and Toronto in which half a dozen senior figures from KPMG, one of the world’s most illustrious accounting firms, explained the non-compete payments, their conditions, and their general compliance with similar transactions in the industry. Mr Creasey was shown voluminous amounts of paperwork sent to him on the subject – minutes and memoranda, official reports, and even transcriptions of his own voicemails. As he grew more uncomfortable on the stand, he increasingly took refuge in the formulation that “I don’t recall”. “I’m not saying I never got this memo, no,” he said; it’s just that he had no recollection of it whatsoever nor of the auditor’s presentations, nor of the draft of the company financials. By the lunch break, the golden boy was sounding as shifty and unpersuasive as the defendants are supposed to be.

What’s gone wrong with this prosecution? I think it has a lot to do with the nature of justice at the federal level. I’m filing this post by cell phone from a couple of floors above the court house, just to find a quiet corner. You can’t help noticing that this 30 story building is full of quiet corners. They’re called the court. Almost every other court apart from Judge St Eve’s has been empty since I got here. If you need to find an empty room, an unoccupied court is your best bet. My sense is that the prosecution thought this would be a regular corporate fraud case. They would lean on a couple of folks at the bottom, and then run the domino of plea bargains all the way up the chain to the top. Whatever one thinks of Conrad Black, he’s not the type to cop a plea. And nor, it turns out, were the other three defendants. So the government wound up having to take the case to court, and so far they’re not very good at it. Wandering the corridors of empty courts in which no cases are heard day in, day out, you start to reflect on the nature of the system. An over reliance on plea bargains is not good either for the integrity of justice or for basic competence. As is crushingly obvious, almost everyone connected with these non-competes in any way approved them, disclosed them, filed the paperwork in triplicate. Either everyone is guilty or no one is, but arguing that only these four should swing for it is becoming increasingly absurd.