Tuesday, December 11, 2007

Mark Kipnis gets a break

Posted By on 12.11.07 at 07:20 PM

The federal sentencing guidelines called for 30 to 37 months in prison. But Judge Amy St. Eve gave Mark Kipnis probation, ending the Conrad Black trial Monday night on a startling, almost-too-much-to-be-hoped-for act of mercy. It was the justice of Christmas movies, an unfamiliar sight in actual courtrooms. Steven Skurka, a Toronto lawyer who’s writing a book on the Black trial, said it was one of the most poignant courtroom moments he'd ever seen.

Skurka said that by the end of the trial the court had tilted back. The working title of his book, due out in February in Canada, is "Tilted: The Trial of Conrad Black," and Skurka’s thesis is that the federal courts in this country give every advantage to the prosecution. But Judge St. Eve didn’t. Taking full advantage of her license to veer from the stiff federal guidelines -- there’s an excellent analysis of that new license by Greg Burns in the Tuesday Tribune -- she handed down sentences far less severe than the government was asking for.

First up was Black himself. In a jammed 12th-floor courtroom, with banks of TV cameras in the Dirksen Building lobby below awaiting his descent, St. Eve sentenced Black to six and a half years in prison for ripping off Hollinger International shareholders of  millions of dollars in phony noncompete payments as he and his partner, David Radler, sold off the company. (Radler pleaded guilty and testified for the state in return for 29 months in a Canadian prison.) In a splendid demonstration of sangfroid, Black autographed copies of his new biography, Richard M. Nixon: A Life in Full, during a recess. Unless the appeals process works a miracle for him he’ll be reporting to a minimum security federal "camp" in Florida in March -- a shame, really, in that I suspect Black, aka Lord Black of Crossharbour, believes as I do that the only prison on earth worthy of him is the Tower of London.

Then two lesser Hollinger execs, Peter Atkinson and Jack Boultbee, who profited from the noncompetes at a vastly lower level than Black and Radler, stood before St. Eve in a half-empty courtroom looking miserable and were sentenced to 24 months and 27 months in prison respectively. It was 5:30 by then, and if Kipnis had wanted to, he could have come back in the morning. But he chose to get on with it. His family and supporters were waiting out in the hallway, and when they came in they filled the courtroom. "There’s the difference," Skurka told me as they found seats. When Kipnis -- who of course is a Chicagoan, while the other defendants are from Canada -- stood before St. Eve he also stood before a lot of people who actually cared.

Here’s another difference: The judge received about 200 letters singing Kipnis's praises, and a few days before the sentencing Ted Rilea, the vice president of labor relations for the Sun-Times Media Group, brought her a petition that had gone around the Sun-Times and had about 100 names on it. Appreciate that: People at the Sun-Times and the other Sun-Times Media Group properties despise Black and Radler (Radler ran the Chicago properties until the shareholders revolted) for their larceny. Yet they believed Kipnis, who’d been Hollinger's  corporate counsel, should be acquitted. When he wasn't they hoped he'd be spared prison.

The state saw it differently. Responding to a presentencing report that described Kipnis as a marginal participant in Black and Radler’s fraud, the U.S. attorney's office argued that on the contrary, as the lawyer who drafted the noncompete agreements Kipnis played a  "critical" role. "It does not matter that Kipnis was implementing other people's decisions rather than running the show," argued a government brief. "Nor does it matter that Atkinson and Boultbee received less money than Black and Radler, or that Kipnis received no money." St. Eve made it clear that these facts did matter to her, as did the letters and the petition, as did Rilea and Kipnis’s son Blair when they stood before her and pleaded for his freedom.     

Rilea suggested his friend's character by recalling the Sun-Times's 2001 contract negotiations with the Newspaper Guild, which were going nowhere before Kipnis proposed that the paper open its books and let the guild see with its own eyes how 9/11 had decimated advertising. "I know there was no intent at all to do anything dishonest," Rilea said. "In my opinion it would be a horrible, horrible thing for Mark to be in prison." Then Blair Kipnis stood before the bench, where he called his father "the rock on which his family is built," a man whose example he intended to follow by entering law school himself. "With all respect," Blair begged, "to imprison my father would be a horrible mistake. Please, please, don’t take the greatest thing in my life from me."

Kipnis’s lawyer, Ron Safer, described a life full of "acts of random kindness and generosity," and compared Kipnis to George Bailey in It's a Wonderful Life, a man brought to the brink of suicide by misfortune but then told to take stock of all the good he'd done in his life and supported by grateful friends. "I failed him," Safer told St. Eve. "I should have been able to convince this jury they should treat differently someone who received no money. But the final word has not been spoken. You will speak it." He told the judge she’d been fair throughout the trial and now he was asking her to be compassionate.    

And then Kipnis himself spoke. He said he'd joined Hollinger because he wanted to learn the newspaper business. "Ninety-nine percent of the time I believe I was competent," he said. "It was that one percent . . ." Yet "I never for a moment believed those noncompete agreements were illegal," he swore, suggesting that his mistake had been to assume there were other honest people around him who would tell him if they were. He said he'd been a lawyer for 30 years and despite the jokes was proud to be a lawyer, and now that life was gone. He and his wife had bought a little sign company and were struggling to make it go, and in the meantime the Sun-Times was struggling to survive "and it breaks my heart." He said, "My son should not have to put his life on hold. He should not have to stand before you today. My house should not have to be sold. My family should not have to be here today to hold me up."     

Last-second regrets don't often sway courtrooms, but in this case the audience didn't need to be swayed. Most reporters following the trial believed Kipnis had gotten a bad deal. When the trial began last March and federal prosecutor Jeffrey Cramer was laying out the government's case, he told the jury that Kipnis's share of the wealth was $150,000 in bonuses. "His price was just a little lower," said Cramer sarcastically. But Radler, the government's star witness, would later testify that the bonuses were a reward to Kipnis for his hard work and had nothing to do with the noncompetes. When the state rested, Safer asked for a mistrial on grounds that the prosecution had misled the jury. St. Eve denied his motion, but she said she was surprised by Radler's testimony and told Safer,"His testimony gives you a very powerful argument for your closing arguments."    

The argument didn't sway the jury. That's why Safer thought he'd failed his client by not making it clearly enough.  But St. Eve got it. She told Kipnis she understood "you didn’t receive a penny." She said "You are clearly the least culpable person," and she said she believed the price he had already paid for his crimes would serve as an adequate "deterrent" to the future crimes of others. She found it "telling" that Rilea had come to court to speak on his behalf. Probation with no time at all behind bars is a rare thing, but it's what Kipnis's supporters dared hope for, and I heard a slight murmur from their ranks as they began to understand that this is what the judge actually intended. She sentenced Kipnis to five years probation including six months of  electronically monitored home detention, and to 275 hours of community service. She fined him $200. There were gasps of joy, and hugs, and tears, and Kipnis stood quivering as euphoria overwhelmed him.     

Later I asked Safer when he thought St. Eve made up her mind. He said he had no idea. Euphoria doesn't last long, and when Kipnis adds everything up he'll be confronting the fact that he's middle-aged, disbarred, broke, and a convict, and for the next five years of probation his life won't be his own. But to enter prison is to die. To go home is to live.


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