Ghomeshi Trial Begins

why does speculation revolve around the reasons why she chose to represent him? 'believe him' 'not believe but he deserves representation''as a mentor to young women she should be pure', 'she doesn't need the money'.....

why can't it just be about the win? or the notoriety? or taking an intriguing job? trying to set a precedence? 

let's not make it about gender at all. it's a factor only because she is a woman. it shouldn't be.

'a lawyer is a lawyer no matter the gender'. they payed the money to become what they are and put in the work to get there, here, or where ever. i know if i was a lawyer i wouldn't want my gender being discussed in relation to any cases i had taken on or not. it'd be my business i paid for it.

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That's silly, Magoo.

Can you tell us why?

My thinking is that if Henein is supposed to have declined to take on Ghomeshi as a client, because she's a woman who presumably wouldn't wish to be assaulted during a date, then why should any lawyer try to defend an axe murderer, if they themselves wouldn't wish to be axe murdered?

John Wayne Gacy murdered at least 33 males.  Is it hinky at all that a male lawyer took on his case?  Was he a traitor?

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It would have no identity-based impact on the case.

I totally identify as someone who doesn't wish to be axe murdered.  Don't deny my reality.

I just finished explaining why.

pookie wrote:

Henein has used some of the complainants' subsequent words to cast doubt on the precise reactions they claimed to have against Ghomeshi (ie., challenging LCD as to why she wrote to Ghomeshi after the alleged incident that "your hands are magic".)

But by far the more serious aspect is using their failure to reveal the subsequent contact when asked by police (and, presumably, the Crown), to challenge their credibility as a whole.  It's the last minute disclosure (literally DURING the trial) that has been the most damaging.

i think deliberations would be about: is it plausible, with all the intrevening years, to not remember anything much other than the outstanding violent event. an event weighing heavier every year it's carried.

nothing else matters but the event. the assault.

pookie wrote:

Henein has used some of the complainants' subsequent words to cast doubt on the precise reactions they claimed to have against Ghomeshi (ie., challenging LCD as to why she wrote to Ghomeshi after the alleged incident that "your hands are magic".)

The actual quote was "I love your hands".  I did an internet search on this phrase and found a blog entry by a lawyer:  I love your hands: the Trial of Jian Ghomeshi 

I also like cartoons that are poignant if not funny.

Pondering wrote:

Okay let me put it this way. In my opinion she is using her femaleness to get away with abusive cross-examination of a woman who was victimized because she is a woman.

Magoo read the article. What you quoted wasn't a comprehensive definition.

JG might have hired her for that reason but any defense lawyer will push the boundaries until a Judge orders them to stop. You seem to be saying that female defense lawyers should judge their clients before the courts do and then either take cases based on that judgement or even worse put half-hearted efforts into their job of defending their clients. We need way better rape shield laws so that lawyers no matter what their gender are not allowed to go down the rabbit hole.

Well said.

kropotkin1951 wrote:

Pondering wrote:

Okay let me put it this way. In my opinion she is using her femaleness to get away with abusive cross-examination of a woman who was victimized because she is a woman.

Magoo read the article. What you quoted wasn't a comprehensive definition.

JG might have hired her for that reason but any defense lawyer will push the boundaries until a Judge orders them to stop. You seem to be saying that female defense lawyers should judge their clients before the courts do and then either take cases based on that judgement or even worse put half-hearted efforts into their job of defending their clients. We need way better rape shield laws so that lawyers no matter what their gender are not allowed to go down the rabbit hole.

I am saying they should not take advantage of being female to undermine a woman, or being black to undermine a black person, or handicapped person to undermine someone who is handicapped. It is equivalent to "if your own sister thinks you're guilty you must be".

All lawyers evaluate their cases on a variety of criteria and don't accept them all. I don't know whether she identifies as one or not but I don't consider her a feminist. Putting on the "it's my job" mantle doesn't absolve her because she does get to choose her cases.

Jian Ghomeshi trial reveals old ways of Canada's legal system, law prof says

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Constance Backhouse, who teaches law at the University of Ottawa and is the author of Carnal Crimes: Sexual Assault Law in Canada 1900-1975, told CBC News the Ghomeshi trial has highlighted remnants of a legal system dating back to the 19th century when a woman "had to convince the court that you were blameless."

kropotkin1951 wrote:

... above everyone else in the system and our society a criminal defense lawyer has to live and breathe the idea that their clients are innocent and it is their job to make sure the Crown doesn't prove otherwise. Like they say its a dirty job but someone has to do it.

A dirty job indeed. At least the times when the defendant is in fact guilty of the crime as charged.

Defense lawyers have the ability to reason, like most humans. If at some point during their investigation they discover evidence that convinces them their client is indeed guilty, they then have a moral dilemma.

From that point on, making sure "the Crown doesn't prove otherwise" no longer becomes a noble deed.

The problem isn't to do with analyzing why victims do what they do. The problem is analyzing why the rest of us are wilfully blind about it, and pretend we'd never do that. If there is anything pathological going on here, that is where it is.

Actually it is funny (or sad and crazy-making, really).

Had a conversation with a couple of FB friends two nights ago. One of them a full on political leftist. The other someone I always considered a sensitive guy. Both of them slammed me and started in about how there was no case, they lied and discredited themselves when they went back to him, that the whole system of justice depends on proof. One of them even suggested I was condoning mass murder if I didn't recognize the need for hard evidence.

Like Charlie Angus said in that quote, no one is defending Ghomeshi or questioning that he did this, bu tfor some reason the suspicion naturally turns on the victims.

Personally I think it is a reflexive thing where people (particularly men, but susprisingly I have heard this from one woman in the past few days) snap into "fickle, conniving, lying women" mode, as if they feel they themselves are under threat of false (or not) accusation.

It is also mind boggling because these cases almost never come down to hard evidence, or catching someone in the act.

On that note, you should read the blog of Henein's closing arguments. I know it is her job, but what a piece of work.

I have sat through many closing arguments of company lawyers defaming union activists and many times those lawyers and the fired employee were women. Honest and proud women who had the audacity to stand up for their rights being called liars and cheats with impassioned pleas for the arbitrator not to be sucked in by the employees duplicity.

I haven't read her closing arguments but I'll bet it is in the same vein.

The prurient nature of the defence and the general population's love of such crap has led to it already being widely covered.  For me, it's more significant to see how the State has approached it.  I felt the Crown's closing statement addressed the issues pretty well (it being in post #428).  I'm not bothering to read Robitaille and Heinen's closing statement.

I haven't seen Hnatiw's statement.  Was that part of the closing as well?  Or was this a statement released to the public?

I disagree.  No need to read Heinen's closing arguments.  The case of the defence has been in the mainstream media everywhere.  Almost all the "experts" who comment on the case are defence attorneys (and thus are heavily biased in the defence's case and tactics).  Instead, I feel it's best to focus on the Crown's case against Ghomeshi.  So, here it is:

From the report on the Crown's statement:

[quote=Laura Fraser, CBC reporter]Court is in session and the Crown has begun his arguments.

"Having control over who touches one's body -- and how -- is at the core of [human] dignity," the prosecution says. "And, your Honour, that's what this case is all about."

It's the criminal justice system's responsibility to protect that right, Crown attorney Michael Callaghan says.

[..]

To prove that an offence occurred, the Crown must prove that there was: "Touching, the sexual nature of the conduct and the absence of consent."

Crown attorney Michael Callghan says all three of the complainants' evidence satisfies the threshold to be considered a sexual assault.

"It is in this context of sensual kissing that Mr. Ghomeshi pulls her hair in the car," the Crown says of the first complainant.

DeCoutere, meanwhile, alleges she was choked and slapped while kissing.

And the third complainant alleges she was choked and smothered while kissing on a park bench, he reminds the court.

The Crown is now summarizing the evidence of each complainant.

The first: Ghomeshi met the first complainant at a Christmas party in 2002. After a CBC Play taping, the complainant alleged that Ghomeshi pulled her hair "really, really hard" in his car.

"It felt like there was a rage that wasn't there seconds before he did it," she told the court, the Crown recounts.

The woman says that Ghomeshi then reverted back to the charming person she had first met and it caused her to question whether he had hurt her by accident.

The next alleged assault occurred after another Play taping, this time in 2003. The complainant attended the taping with a friend, but they dropped her off at the subway before the complainant and Ghomeshi drove on to his Riverdale home, the Crown says.

The two began kissing on the couch, then standing and kissing, when the accused suddenly pulled the complainant to the ground and hit her on the head three times, the Crown says. It felt like Ghomeshi used a closed fist, Callaghan recounted.

"He threw her out like trash," the Crown says, quoting the witness.

The Crown has begun recounting DeCoutere's evidence, now focusing on the first dinner they shared on July 4, 2003.

After dinner on the Danforth they returned to Ghomeshi's Riverdale home, the Crown says. While there, they began kissing consensually -- but then the accused pushed her against the wall and choked her and slapped her twice, Callaghan recounts. The pressure was hard enough to cut off her ability to breathe, the Crown says.

Ghomeshi looked at DeCoutere and then slapped her again, according to the witness's testimony.

DeCoutere stayed for about an hour afterwards to try to "normalize the situation," the Crown recounts.

"She just didn't feel like leaving was the right choice... She indicated she was a people pleaser [and] she was worried about angering [or] seeming not cosmopolitan in Mr. Ghomeshi's eyes."

We've moved on to summarizing the third complainant's evidence.

Ghomeshi and the third complainant met in 2003. After he came to see her performance, they found themselves kissing on a park bench in Toronto.

"She felt, all of a sudden, his hands on her shoulder and his teeth on her neck and then his hands went around her neck and he was squeezing," the Crown says quoting the witness.

She tried to get out of the situation when Ghomeshi put his hand over her mouth, making it difficult for her to breathe, the Crown says.

The complainant continued to see Ghomeshi for a few weeks and testified that she later had one consensual sexual encounter -- she masturbated him -- after the alleged assault.

The Crown says that there's no need to call an expert witness to explain why some women disclose alleged assaults many years later, because case law already recognizes that trauma can affect someone's actions.

The first complainant "didn't think she would be believed," the Crown said.

DeCoutere thought she "had to be broken and raped."

The third complainant went to police after she heard about other allegations "when she recognized a pattern and realized that what happened to her wasn't an isolated incident."

Case law also recognizes that a sexual complainant's credibility should not be negatively affected if they choose to go to police much later than when the incident is alleged to have happened, the Crown said, quoting from an earlier decision.

"In assessing the credibility of the complainant," the delay of disclosure or the fact that a complainant chooses to stay in a relationship with the accused, the Crown argues, cannot affect a witness's credibility.

"Victims of abuse often, in fact, do not disclose it," Callaghan says. "And if they do it may not be until a substantial amount of time has passed."

Complainants process alleged assaults in "their own unique" ways, the Crown says.

You can see that in the different ways in which the three complainants responded to the alleged sexual assaults, he tells the court.

The first complainant was panicked and still does not understand why this happened, the prosecutor said.

DeCoutere, meanwhile, tried to normalize the situation and was "keenly aware" that she would see Ghomeshi again. She would "at times go overboard" to make sure there "was no negativity or weirdness" between them.

The Crown says that reaction is consistent with how DeCoutere describes her personality.

The final complainant continued to try to maintain a professional relationship with Ghomeshi following the alleged assault, because they were in the same industry.

And because she did not want to appear "hysterical" by reporting nor harm the careers of her family members who could be affected by Ghomeshi's former power within Canada's arts and entertainment world.

The crux of what the judge needs to consider is the meaning of credibility and reliability, the Crown says.

"In assessing reliability" the judge should look for: confirmatory evidence, especially inconsistencies and contradictions.
-- The idea that an abundance of detail may not necessarily mean a witness is reliable.
-- Absence of evidence to support testimony.
-- The concern that the influences of life and time may affect witness testimony.

Credibility is different and the judge can give more or less weight to certain issues, the Crown says.

The Crown points out that there was confirmatory evidence in the first complainant's testimony.

- There's video evidence of her being at Play.
- There's evidence supporting she was at the party at which she says she first met Ghomeshi in 2002.
- And the Crown says that the issue of the "Disney car" the complainant thought Ghomeshi was driving -- but did not, in fact, lease until July 2003 -- should be excluded from the judge's mind. Ghomeshi was driving a subcompact car at the time and it may, in fact, have been yellow -- as she testified.

While the first complainant could be considered less reliable because her memory "seemed to change" over time -- with respect to whether she was wearing hair extensions.

The Crown says that the judge must remember that the complainant tried to push down these painful memories for many years.

The Crown asks the judge whether "the differences significant" -- or is it possible that some of these inconsistencies are related to memory and not related to her credibility?

One of those issues included two emails, which the complainant sent more than a year after the alleged assault, and a photo of herself in a bikini. She already told the court she had no other communication with Ghomeshi except perhaps an email she "drafted in anger" but did not believe she sent.

"When confronted with these communications, the complainant presented an explanation" -- the bait issue -- "that is open to the judge to accept," the Crown argues.

"I urge you to remember" what I said earlier in not relying on stereotypical assumptions about how victims should act, Callaghan said.

The complainant's memories of the alleged sexual assaults remained both unchanged -- and unchallenged in cross-examination -- so the judge can consider giving weight to those statements, even if he chooses to reject other testimony as not credible, the Crown argued.

The Crown says that DeCoutere spoke honestly about her first meeting with Ghomeshi, which can be supported with evidence.

And while the defence may suggest that DeCoutere's less credible -- because she did not disclose all of the post-assault contact she had with Ghomeshi -- the Crown says it's important for the judge to remember that the complainant said, under oath, that she believed those communications were not relevant. The complainant thought police only needed to know about the time directly connected to the alleged assault, the prosecutor said.

DeCoutere also genuinely did not remember all of the emails until she was presented with them in court, the Crown said, and then refreshed her memory.

The defence may also try to cast doubt on DeCoutere's testimony because of the negative messages she and the other complainant sent one another about the accused. But the Crown said that these were two women who shared a negative experience and became "an informal support network" for one another.

The third complainant was "candid" about what she did not recall, which means that the court should be more confident in relying on the evidence that she was able to recall, the Crown said.

The witness remained clear in her description of the alleged choking, the Crown said.

The defence put several inconsistencies between the third complainant's testimony and what was printed in Toronto Star article.

But the Crown points out, now, that the complainant told the defence that she was misquoted in the article, something she also mentioned to police. And, seeing as the defence, did not call evidence to contradict that, the judge should not regard this as a true inconsistency, Callaghan says.

Callaghan also re-iterates that the judge should not hold the communications between DeCoutere and the complainant -- which included comments about how they hoped Ghomeshi would had become fat, bald and would wet the bed every night -- against the women.

"They were two friends venting about a shared experience," he said. "Given that the [messages] were written in that context" it's hard to see that they detract from the complainant's credibility.

The Crown also said that the defence may try to undermine the credibility of the third complainant because she delayed disclosing the sexual encounter she had with Ghomeshi after the alleged assault.

But the Crown says that she did, in fact, go to police before going to court -- and then explained to the court that she was embarrassed about it.

"All three of the Crown's witness were unshaken in their allegations that they were sexually assaulted by Mr. Ghomeshi."

The evidence on "those key points" was steadfast.

And, with that, Crown attorney Michael Callaghan closes his case.

Yeah, that makes sense.  Thanks.

Pondering wrote:

pookie wrote:

Pondering wrote:

quizzical wrote:

why does speculation revolve around the reasons why she chose to represent him? 'believe him' 'not believe but he deserves representation''as a mentor to young women she should be pure', 'she doesn't need the money'.....

why can't it just be about the win? or the notoriety? or taking an intriguing job? trying to set a precedence? 

let's not make it about gender at all. it's a factor only because she is a woman. it shouldn't be.

'a lawyer is a lawyer no matter the gender'. they payed the money to become what they are and put in the work to get there, here, or where ever. i know if i was a lawyer i wouldn't want my gender being discussed in relation to any cases i had taken on or not. it'd be my business i paid for it.

In my opinion she was hired specifically because she is female so she could more readily get away with whacking the victims. That makes it relevant.

She was hired because she is one of the foremost criminal defence lawyers in Canada. Period.  To say that is linked to her gender is kind of insulting, actually.

I never suggested she isn't also highly skilled. Highly skilled women don't get some jobs because they are female. Why is it so hard to believe that they do get some jobs for the same reason? Are we going to pretend that gender doesn't impact us when it is the legal system? In a trial that hinges on whether or not the women are telling the truth and brutalizing them on the stand is a means of undermining their testimony?

Read David Tanovich and Elaine Craig's piece in the Globe about the various cases they have found in which whacking the complainant was employed. 

(A) Those are real examples of whacking.  Not all attacks on credibility are whacking.

(B) I'll lay you 100-1 all of those defence counsel were male.  You do not get away with whacking because of your gender, but because the judge is failing to do his or her job.

(C) If you're talking about public perception, I'd say it's 50-50.  Any greater leeway given to her is bounded by idiotic commentary about her hair and shoes.

I say not.

pookie wrote:

6079_Smith_W wrote:

On that note, you should read the blog of Henein's closing arguments. I know it is her job, but what a piece of work.

 

I think Henien's closing was v effective and I saw nothing that crossed the line into over-zealous advocacy or improper submissions. 

I did finally read it.  I agree, but I don't think it's an open and shut case by far.  I feel the Crown put forward a good case.  That said, I do feel that the system needs to better prepare complainants.  The following should not have become an issue for the Crown to deal with:

CBC Reporter Laura Fraser on Crown statement wrote:

And while the defence may suggest that DeCoutere's less credible -- because she did not disclose all of the post-assault contact she had with Ghomeshi -- the Crown says it's important for the judge to remember that the complainant said, under oath, that she believed those communications were not relevant. The complainant thought police only needed to know about the time directly connected to the alleged assault, the prosecutor said.

The relevance of it should have been made clear to LDC from the outset, along with the defence having access to the videos of the police interviews via disclosure.  But, the problem from an investigator's point of view would be that to set the interview up as a grand stage which may be potentially viewed by many later may inhibit natural expression.  So, hard to say.  Still, does seem something needs to be changed. 

Anyway, I do feel the Crown covered issues of consent, behaviour, coping, personality, and trauma, while deflecting the anticipated defence claim of corroboration reasonably well.  We'll know by March 24.

Crime is a great business

http://torontolife.com/city/crime/marie-henein-jian-ghomeshi-lawyer/

“She’s positioned herself to be the go-to lawyer for rich and famous people in trouble.”...

By the time he hired Henein, it had become apparent that his fate would rest on skewering the women lining up to accuse him. “You’ve got to do that in a way that doesn’t make you look like a bully or an ogre,” points out Osgoode Hall professor Alan Young. “It doesn’t hurt to be a woman.”...

“We represent people who have committed heinous acts—acts of violence, acts of depravity, acts of cruelty,” she quipped. “Or as Jian Ghomeshi likes to call it, foreplay.”

The ballroom erupted in laughter, but six days later when the butt of her joke hired her, some colleagues wondered whether the jest was yet another of Henein’s marketing ploys—a provocative signal pitched directly at Ghomeshi, who had already confessed to a taste for rough sex, that she would push boundaries in defending him. “I wouldn’t put it past her,” says one, asking for anonymity. “That’s one of her assets. She can think five, six, 10 moves down the chess game.”

Hardy har har.

She invites comments on her appearance. It's part of a deliberately cultivated image. You won't find her defending bank robbers anytime soon. There is nothing noble about this woman's choice of becoming a defence lawyer. She is all about defending the 1%.

Ward wrote:

Crime is a great business

When you can blow $10'000 (or more) clearing your name from false alligations the legal system itself is a great business for lawyers.

(Generally speaking, not this case per se)

Henein would be in the $450 to $550 dollar per hour range. A paltry $10,000 would not get you in the door of her office. Its like divorce lawyers. Most well off men that go to court go out and hire the best woman lawyer they can find.

I am still hoping the Judge is going to find him guilty on the sexual assault charges. The Crown made their case and it is up to the Judge to give what weight he fells is appropriate to the after the fact evidence. It certainly did not change the testimony of lack of consent at the time the incidents occurred. The only way he walks is if the Judge accepts the fact that these women at least lied if not colluded.