Andy Barrie, host of CBC Radio One's Metro Morning in Toronto, spoke with Globe and Mail reporter Paul Waldie about the closing arguments in the Conrad Black trial, scheduled to begin June 18, 2007.

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Andy Barrie: The judge has disallowed a so-called ostrich defence. Why don't you get into this a little for us?

Paul Waldie: The ostrich defence is really wilful blindness, and the best example is, a drug dealer puts a box in your car and you deliver it to his customer, but you don't look inside the box. You don't want to know what's inside the box. Under this ostrich provision, you can be found guilty of the same kind of crime as the drug dealer.

It's become pretty popular in these white-collar cases where you have a bunch of executives who may or may not have wanted to know about fraud at a company. So, the judge has allowed the prosecution to include that as part of the jury instruction, but, on the other hand, she disallowed another provision, called the Pinkerton provision, where you can find a whole bunch of people guilty of conspiracy even if they all didn't participate in it.

Andy Barrie: Disallowing the ostrich defence is what sent Ken Lay of Enron to jail, isn't it?

Paul Waldie: Exactly. It was used in Enron, used in WorldCom, and it was a pretty powerful tool for those.

Now, the defence argues this case is totally different, because Enron was an accounting fraud case and this isn't that at all, so their argument was this is different and you can't use the ostrich instruction if people were just negligent.

So, the judge has modified the instruction to include that the jury cannot find them guilty of simply being negligent. They have to have deliberately avoided knowing the truth.

Andy Barrie: The prosecution goes first. What are you expecting to hear from them?

Paul Waldie: I think they're going to harp on the same themes that they've tried to highlight to the jury thus far: One, that the buyers of the Hollinger newspapers did not want non-complete agreements with Conrad Black. Two, that Conrad Black and the others lied to the audit committee and to Hollinger directors about what they were doing. And three, that Conrad Black treated this company like his own personal piggy bank.

Andy Barrie: And the defence will answer in what tone?

Paul Waldie: The defence will say the buyers did want non-competes with Black and David Radler and the others because they were a competitive threat, that they didn't lie to anybody, that, in fact, all the agreements and all of the provisions were detailed in numerous company filings, and that they did treat shareholders with respect.

Andy Barrie: Most of the conversation about non-competes has had to do with CanWest Global's purchase of what used to be a partnered operation with Conrad Black, the National Post. But I think the case that's intrigued me the most is, and seems to me the most telling and most disturbing, I think, for Black's defence is American Publishing. Can you go over that for us?

Paul Waldie: That is where, I think, Black's team has the weakest defence. The American Publishing Company was a subsidiary of Hollinger. It held an awful lot of community newspapers, and by about 2000, it had sold most of its community newspapers. In fact, it was down to one paper in California. Interestingly enough, a large part of the papers were sold to a company called Horizon. It was controlled by Black and Radler.

As part of that deal, Black, Radler and couple of other executives signed non-compete agreements with APC, so the allegation is that they signed non-compete agreements not to compete with themselves and taking money from Hollinger to do that, even though the company they were supposedly not competing against had one newspaper in Mammoth, Calif.

Andy Barrie: Do you want to tell me who you think is going to win this case?

Paul Waldie: In this kind of a case, it really comes down to closing arguments, because what you find in these cases is three months of testimony that really is fragmented. You get bits and pieces of information, and how all four sides and the prosecution pulls this together to present whatever puzzle they want to the jury is going to be absolutely critical.

I think Black has got a tough time on a couple of charges: the obstruction of justice charge, the APC non-compete. A lot of the other bid charges, though, I'm not quite sure I've seen enough from the prosecution to warrant conviction.

Again, they've got a full day today to present their case, and it'll be interesting to see how they do that.

Andy Barrie: One of the excused members of the jury scoffed at the idea that they weren't sufficiently sophisticated to understand these complex legal arguments. Do you get that sense as you watch the faces of the jury that they're engaged, that they get it?

Paul Waldie: It's hard to tell. Like any trial, we've all been here long enough to know that there are days when you really do want to get out of there, and you're having a hard time focusing.

I can only go by what she told me, and this ex-juror was there three weeks and she said, no, these people are bright enough. Everything is being explained quite clearly, and she's right about that. By the end of the trial, the lawyers on all sides were throwing out words like "non-compete," and "related party transaction," and all these business terms, and the jury all seemed to understand exactly what they were talking about.

I do think they've been able to follow it, and that's a credit to the lawyers on all sides who've really articulated it and presented it in a clear fashion.

Andy Barrie: I don't know if you've been reading any of your colleagues' works, but it seems to me that the journalists who have had some connection ideologically or vocationally with Conrad Black seem to expect an acquittal and those people who have not seem to be predicting the other side. Do you get that sense that people are just projecting themselves so much into what they've seen?

Paul Waldie: Yeah, and I think that's a function of the media wanting a quick decision and wanting something explained and decided on, and fast, and that's just the culture we live in, where people can't really wait three months, can't really sit through everything, don't really want to hang around for all of the closings or hear absolutely every piece of evidence.

Instead we want to have a knee-jerk, very fast opinion reaction, and I think that's a mistake, because nobody knows what this jury really is thinking, nobody knows what they're going to decide, and nobody really understands, I don't think, the legal technicalities of what they have to decide. That will be interesting to hear, when the judge offers jury instructions next week. What exactly is the crime here? How do they find crime and what exactly is the law? And even the lawyers are wrestling with that. They don't really understand how they apply Delaware law or Seventh Circuit appeal decisions.

The judge has had four jury conferences with these lawyers to hammer out what exactly she will tell the jury. I think it's a little bit disingenuous for people to come to quick conclusions, that's for sure.

Andy Barrie: Finally, Paul, should Mr. Black be convicted and his associates, his co-defendants, is there an appeal procedure that could drag this on? Is it over when it's over?

Paul Waldie: There is an appeal decision, but I'm told that appeals in this court, which would go to the next level with the Seventh Circuit Appeal, are almost never overturned. In other words, the Appeal Court here has a very strong record of upholding lower court decisions, and they rarely go against jury verdicts. So, I would expect appeals, but I would not expect many to be successful.

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