In defence of the Crown: the case of Ghomeshi.

From one media commentator that blame and accountability fall squarely upon the Crown.

This commenter appears unaccepting of a possibility that the two highly competent and respected Crown prosecutors could be taken by surprise through last minute revelations of the alleged victims. To this commentator, and many others, the only reasonable explanation for the witnesses’ catastrophic failure is inadequate preparation.

To the commentator referred to above, a former prosecutor herself, the notion that victims would allegedly collude, withhold information from police, (and seemingly from their own lawyers who would have advised them of the importance of such disclosure) appears to be inconceivable.

Perhaps it was simply a matter of imploring  the complainants to “…be completely honest with us…no seriously…ok, we really mean it now…it’s important.” would have readily exorcised these now freshly discovered omissions in a manner police investigators could only dream of.

To reinforce the position in her article, she quotes two anonymous armchair prosecutorial quarterbacks in agreement.

According to this commentator:

It was the Crown’s job in preparation to get that out of them ahead of time, to prevent exactly what happened. In their defence, the women say they didn’t think the bits they skipped were relevant and they weren’t asked to elaborate. That becomes a really jagged little pill to swallow, given the Crown’s expected standard of witness preparation.

Ah, if only full disclosure came to litigators so easy. If only lawyers were not often required, as was the case here, to painfully extract important details by meticulous and unforgiving cross-examination.

If only the Crown and police had subjected the alleged victims to the widely decried tactics of defence lawyers in advance so as to preempt the public display of their omissions. If only the Crown had been able to read minds, or properly refresh allegedly forgotten memories about emails and letters sent years ago – something that some might wager as long erased and therefore immune from confrontation.

If only they had tackled, instead of weaved at the State Championship. If only…

In the course of preparing our clients and witnesses, lawyers operate within the levels of disclosure they provide us. If a witness is not aware of, or has forgotten prior statements that may form the basis of an impeachment, we can’t expect any lawyer to triage this. Beyond the anticipation of the obvious, we too are limited by what witnesses tell us. We are like doctors trying to diagnose symptoms of incredibility without the benefit of anything like blood tests, MRIs, or x-rays trying to understand what the underlying issue of concern is.

Contrary to popular opinion, lawyers are rarely in a situation where they know every detail of what happened and so our preparation of them can be limited as a result. Perhaps its shocking to some, but those people motivated to exaggerate, omit, or deceive do not exclude their own counsel from such proclivities.

We are limited in practice, ethics, and proper witness management to accept witnesses are acting candidly with us. Imagine otherwise and a Crown telling a victim in preparation “I don’t believe you.  Tell me more.  You are holding back things. This is important, stop lying.”

We are not judges or investigators of our our witnesses or clients.  As lawyers, we are entitled and expected to operate on a premise of candour when dealing with our own clients or witnesses.

Crown Attorneys, like any other litigator, must advance their case through the medium of human beings. All human beings, accused or alleged victim, defendant or plaintiff, police or civilian – have their frailties.

Every practicing trial lawyer knows this. Every practicing lawyer also knows that there are always going to be inconsistencies, implausibilities, and incongruities in a witness’ evidence. Every trial lawyer is trained to expose them for all they are worth. The more important question though is what significance such shortcomings hold, if any, in assessing their reliability or credibility.

Now take such inherent imperfections in witnesses and add weaknesses of human memory. Then add motivations to fabricate, omit, or exaggerate. This is not exceptional to any case, any witness, or any victim. To make matters worse, as it was the case here, mix in the possibility of collusion of witnesses with like-minded evidentiary temptations and we wind up with the potential to be “eviscerated by defence counsel” as so aptly put by said commentator.

There is no such thing as a perfect witness and no witness is impervious to impeachment in some manner. Unless, of course, they are made perfect by spending a lot of time in the proverbial woodshed. Needless to say, this is not the sort of perfection lawyers ought to strive towards, let alone a Crown Attorney advancing a case with the public good in mind.

Fortunately, Courts do not ask for perfection, they ask for truthfulness.

My opinion is that aside from defence counsel, no one saw this storm of impeachment forthcoming: not the Crowns, not the police, not the complainants’ lawyers, and perhaps not even complainants themselves. I would hazard a guess that even the defence was surprised to the extent of which the storm kept coming.

This is not to say that the alleged victims did not know the evidence existed.

Rather, the odds of this evidence being discovered, retained, and presented so skillfully by a master of evidentiary sublimation was so far removed from reality that perhaps it was a risk each were willing to readily accept.

Or, perhaps I am wrong and their explanations will be found compelling by the presiding judge. Time will soon tell. Regardless, it need not to have gone the way of such devastation. These omissions need not to have had the explosive power they did.

If, for example, the alleged victims had told the police, (presumably) their own lawyers, or the Crown Attorneys. Then, these incalcuably important details that would form the basis for countless points of contention upon their veracity may have faltered.

As to be expected under cross-examination, explanations were offered as to why they appeared to be concocting evidence, colluding, holding back on salient details in police statements, amending statements, providing last minute disclosure, authoring provocative letters, and attempting to continue relationships with their attacker they now so throughly reviled.

Explanations can be offered, but that did not stop Ms. Henein from arguing soundly in the circumstances that these explanations are not worthy of belief.

As one commentator so succinctly put:

Henein didn’t take her eye of the soft underbelly of their narratives, each replete with towering inconsistencies, reversals, hastily retrieved memories, amended police statements, pungent fabrications, reluctant disclosures and grudging admissions adduced under cross.

Yet had these explanations been told in advance, there likely would have been an inoculatory effect on impending attack against their credibility. Had these complainants remember any of these countless details that would no doubt been disclosed to the defence, it is unlikely the impeachments so masterfully extracted from the complainants would have had the same effect. Had they done so, it is arguable whether such evidence would have been worth any significant weight (or admissibility) as is so vociferously advanced by pro-victim commentators of the trial. 

For that matter, query whether many of them would have been raised at all. As was pointed out many times by commentators, the manner in which someone discloses allegations of sexual assault or their behaviour afterwards is not probative and may even be excluded on that basis.  It was argued that such evidence is exemplary of the myths of sexual assault victims.  All true, but that was not the point here.  The point in the case of Ghomeshi is that these details were withheld, denied, or amplified.  As such, advancing myths was not the focus of the defence: it was exposing the alleged victims for failing to be forthcoming about them.

Query also whether these complainants did not disclose such details because the negative impact they thought it might have upon their case.  If true, it is a rather strange twist of irony that the very myths that are now vilified for being raised at all, may have been the very impetus for the victims not disclosing them at all.

 A “fumble” in the mind of arm-chair quarterbacks who ought to know that our justice system is not one where the Crown wins or loses. These sideline spectators who ought to know that we do not quantify success of Crown Attorneys on convictions obtained. Who ought to know we do not expect Crown Attorneys to obtain convictions at the cost of “perfecting” witness evidence.

Everyone loses: the alleged victims, the accused, the lawyers, the judges, and at times even the justice system by the endless criticism of those who felt it could have been done differently.

What is most regrettable is that this criticism is fuelled by ignorance by those looking from the outside and following live tweets, endless opinions from lawyers and academics, and legal commentators whose very job is to make a case as exciting and controversial as possible to garner more clicks.

All that said, trial is not intended to be a mechanism of compromise.  By its very nature, it is oppositional and binary.  As I tell all my clients: “…no matter what happens, you will not walk out of this situation happy.  This is a gruelling, unforgiving, stressful, expensive, and unpleasant process for everyone involved.” However, throwing out the systems, bending the rules, or presuming verdicts in times of perceived crisis is not the answer.

Justice must prevail, even though the heavens may fall.

For what its worth, I take comfort in the manner this trial has proceeded. To me, this is a perfect example of the justice system working at its finest.  An impeccable defence combined with exemplary Crown Attorneys demonstrates that the justice system plays a necessary, albeit unpleasant role in resolving human conflict in a civil manner. Trials are not meant to be easy, verdicts of guilt are not meant to come lightly, and no witness is entitled to a presumption of truth no matter how heinous the acts complained of are.

It has been said that injustice is relatively easy to bear; what stings is justice. This case is no exception.