This forum is not purely dedicated to legal discourse. While I may attempt to 'raise the bar' with some pieces relating to law and being a criminal defense lawyer in Toronto, I also plan to use this blog as a medium to express my often critical thoughts on the daily grind that is life. Throw in some random videos and internet fodder, and the bar is sure to be lowered.

Friday, 24 June 2011

He Said/He Said - Lies, War, and a Change of Perspective

This past Monday, I had a client of mine acquitted of assault, threatening death and mischief after a full day trial at in a Toronto courthouse.  The gist of the case was that my client was essentially homeless before moved in with the complainant.  He pan-handled for money and got by however he could, scraping together whatever resources he could to sustain a minimally sufficient existence.  He was an alcoholic and met the complaint, also an alcoholic, about a year earlier at the Beer Store of all places.  They became drinking buddies and, after a short while, my client moved in and paid rent.  My client was alleged to have beaten his roommate, smashed his air conditioning unit and threatened to kill him after a fight over, you guessed

At first glance, a cursory review of the disclosure revealed that the case for the Crown appeared to be fairly straight forward and the prospect of conviction seemed to be at least reasonable.  The complainant gave the police a video-taped statement which provided a fairly sensible and believable account of what happened.  Photographs of injuries to his face, back and a damaged air conditioning unit seemed to support his story.  That's the 'he said.'

I hadn't yet heard my client's version of the events.  As many criminal defense lawyers do, I consider it professional negligence to interview a client without first knowing the allegations against him.  And after interviewing him at the West Detention Center, I was fully apprised of the other 'he said.'  

Before I tell you what he said, you might ask why he was in jail.  Well, he was released on bail shortly after this incident occurred and was subsequently arrested on a second set of charges, with ironically similar facts involving the same complainant, about three months later.  Since he had nowhere to live, no sureties to supervise him in the community while on bail, and was deemed unsuitable for acceptance into bail program, he was detained pending the outcome of his second set of charges.

When the client told me what happened, not surprisingly, his version of the events was different.  Not mildly different, or even somewhat different.  It was completely different.  The only real similarity was the libatious source of the dispute.  I learned about how the complainant actually attacked him, that the complainant's injuries were caused by his own drunken imbalance, and that the complainant has acted similarly in the past when my client didn't make enough money panhandling on the streets to buy...wait for it....more beer.

Unfolding before me was a classic 'he said/he said.'  My mind immediately turned to R. v. W.(D.), [1991] 1 S.C.R. 742, the leading decision of the Supreme Court of Canada on assessing guilt based on the credibility of witnesses in a criminal trial.  In weighing the credibility of the accused in deciding whether or not he is guilty, the following principles must be followed by the trier of fact,

First, if the trier of fact believes the evidence of the accused, he must be acquitted.
Second, if the trier of fact does not believe the testimony of the accused but is left in reasonable doubt by it, he must also be acquitted.
Third, even if the trier of fact is not left in doubt by the evidence of the accused, it must consider whether, on the basis of the evidence which is accepted, the trier of fact is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

A critical eye is important to a criminal defense lawyer not only to assess the strength of the Crown's case, but also to evaluate the prospects of preparing a proper defense.  Being skeptical of a client's story and considering how it will be received by a judge or jury is a natural and vital approach to defending the client.  However, after reviewing the complainant's statements more thoroughly and viewing the photographic evidence of the injuries and 'crime scene' with a more informed understanding of the circumstances that predicated his arrest, I came to the inescapable conclusion that my client was telling the truth - he was an innocent man, not only suffering from the stress of an upcoming trial, but also from a severe and unwarranted restriction of his liberty while awaiting his day in court.

So in preparing for trial, I had fashioned a cross-examination of the Crown's main witness, the complainant, which was aimed at exposing him.  I was ready for war.  I had plenty of ammunition - a motive to engineer false allegations, photos that were inconsistent with the complainant's version of events and a story that had changed from the time he gave his account to the responding officers and the time he gave a video statement at the police station. 

Make no mistake - a criminal trial is war.  And I was ready to abide by the rules of engagement and kill the complainant on the stand.  By kill, I mean that I had anticipated an aggressive shock and awe campaign designed to seek and destroy the complainant's credibility.  I was entitled to do just that, for my client's sake.  It was my duty.  But more importantly, I wanted to.  I was salivating.

When the complainant testified during his examination in chief, without even having yet suffered through the onslaught that was to be my line of questioning, he had already exposed himself as a liar.  His story had changed for a third time and was now a full of fantastic new allegations that were inconsistent with both his first and second statements to police and the photographic evidence tendered by the Crown.  Nothing matched up and the judged wasn't buying it.  He looked at me several times with a certain gaze that I perceived quite accurately.  In my view, it would be inappropriate for a judge to look at defense counsel and roll his eyes in disbelief during a witness' testimony.  But his stare let me know that his brain was rolling and I was eagerly waiting to embark upon my professional blitzkrieg even more so than before.

And when the dust of battle had settled, Operation Cross-Exam resulted in a convincing triumph.  After my client's testimony was corroborated by the evidence, which was ironically called to be used against him, in a credible and honest-to-a-fault fashion, I knew that the war was over.

The Crown's closing submissions were her last ditch effort at salvaging a hopeless cause.  The judge peppered her with poignant, probing questions throughout.  And as I rose to offer my closing address, the judge said "Don't worry, Mr. Hunter, I don't need to hear from you."  It was perhaps the first time in my life that I've been happy to hear that someone didn't need to hear my opinion.  But my client was understandably riddled with confusion as he looked at me in horror.  His lawyer wasn't even going to get a chance to make a final argument!  But as any defense counsel will tell you, it was the sweet sound of glorious victory. 

An innocent man was acquitted after needlessly spending a significant period of time in custody.  His bail review is forthcoming.  We're looking forward to World War II against the same enemy in August.

The upshot of this whole experience reinforced a simple fact of life.  A fact that most police officers are hesitant to admit - but a fact that criminal defense lawyers have known for generations:  not all people who are arrested and charged by the police actually did what they are accused of doing.  

When I was working as a police officer in my former life, I stuck to the fervent belief that roughly 90% of people accused of committing crimes were correctly reported as doing so.  However, after 'switching sides' to the world of criminal defense, it became clear to me that my former quantified estimation of legitimacy was exaggerated - perhaps even by a significant margin.

Still, I would say that most people who come before the courts are factually guilty.  This notwithstanding the fact that factual 'guilt' does not always equate to guilt in the eyes of the law, a debate on the merits of which is beyond the scope of this short post.  But people do accuse others of doing stuff that they simply 

They lie, they go to war, and mostly they lose.  They plague the an already burdened judicial system and waste the time of busy professionals in the Crown's office, the bench, the police and defense counsel.  There are more of them out there than you may have initially believed.

And when it was all said and done, I listened to this in my car...

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