The Hollywood client from Hell

This will be surprising to anyone who’s not familiar with Harvey Weinstein:

Harvey Weinstein’s legal “dream team” for his much-anticipated sexual assault case suffered another blow Thursday when lawyer Jose Baez was granted permission to withdraw from the case.

[…]

People familiar with the situation tell The Daily Beast that Baez, who’s previously represented high-profile clients like Casey Anthony, is exiting due to clashes over legal tactics with the former Hollywood mogul.  

“He thinks he’s making a movie,” said a person familiar with the case. “He’s just trying to put together the perfect cast and it’s not working. It’s not a movie. He is impossible to work with,” the person said. 

The person familiar with the matter said Weinstein was keen to try the case in the court of public opinion—a strategy Brafman had earlier rejected.

“Ben wants to do everything in the courtroom and that’s the opposite of Weinstein, who wants the case tried in the court of public opinion and not a court of law,” a source previously told The Daily Beast. 

Flashback to 1999, when the short-lived (and awesome) Fox series Action had lecherous, creepy characters based on the Weinstein brothers. For all their crocodile #MeToo tears now, everyone in Hollywood knew what this creep was up to.

When law school classmates attack

In a rare example of Twitter being used for good instead of evil, Ken “Popehat” White has some very serious questions for his former classmate Alex Acosta about Jeffrey Epstein’s sweetheart deal:

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The entire thread can be viewed here. And he has even more questions today.

Presumed drunk until proven sober

The USSR also didn’t care for impaired driving – or the presumption of innocence.

I despise drunk drivers – not just because of the lives they’ve destroyed, but because I’ve had to talk to so many of them at 2 in the morning when I’m on duty counsel for the night.  Take it from me: you don’t know true frustration until you find yourself trying to explain to an indignant, barely coherent drunkard his right to remain silent but also that it’s a criminal offence to refuse a police officer’s request for a breath sample.

Most people likely feel the same way, which is why no politician – even those who otherwise doubt the efficacy of “tough on crime” policies – ever lost votes by cracking down on impaired driving.   But even when everyone is agreed that the crime is inexcusable, it’s still possible for the government to go too far in fighting it.

And recent changes to Canada’s impaired-driving laws go way too far:

Canadians could now face criminal charges for driving with illegal amounts of alcohol in their system, even if they were stone cold sober while behind the wheel, under tough new impaired driving laws passed by Parliament, according to criminal defence lawyers.

Bill C-46, which came into effect last month, gives police wide-ranging new powers to demand sobriety tests from drivers, boaters and even canoeists.

Police no longer need to have any reasonable grounds to suspect you’re impaired, or driving with a blood alcohol concentration (BAC) of more than .08, which is 80 milligrams of alcohol in 100 millilitres of blood, before demanding you submit to testing.

Refusing the test can result in a criminal charge.
But even drinking within two hours after you’ve stopped driving or boating could now get you arrested, if your BAC rises over .08.

[…]

Previously, if drivers could prove they weren’t yet over the legal limit  when they were stopped by police, a court could find them innocent.

The new law removes that defence.

“Its primary purpose is to eliminate risky behaviour associated with bolus drinking, sometimes referred to as drinking and dashing” Wilson-Raybould told Parliament.

But Brown calls the law a solution for a problem that rarely existed and claims it will “criminalize Canadians who have done nothing wrong.”

He points to number of scenarios where people park their cars with no intention of driving anytime soon, then start drinking.

If you drive yourself to a restaurant, bar or party and have a few drinks after you arrive, you can be found guilty of impaired driving. Even though you weren’t impaired when you were actually driving. I’m confident this will be struck down by the Supreme Court of Canada eventually, but many innocent people may have their lives thrown into complete turmoil in the meantime.

Last summer, the federal government made applicants for a summer-jobs program sign an attestation that its “core values” aligned with the Charter of Rights and Freedoms. And now this same government is trampling on the presumption of innocence, regardless of what s. 11(d) of the Charter reads.

A Liberal government picking and choosing what sections of the Charter holds sacrosanct? Shocking, I know.

When good rulings happen to bad people

The Alberta couple who let their going son die a horrible death from meningitis have had their convictions overturned by the Supreme Court of Canada:

The Supreme Court of Canada overturned the 2016 conviction on Tuesday after about one hour of arguments from the Crown and counsel for David Stephan and his wife, Collet, found guilty of failing to provide the necessaries of life to 19-month-old Ezekiel.

The Stephans’ defence told Canada’s highest court that contrary evidence from medical experts led the trial judge to issue a misleading charge and did not “give the jury the tools that they needed to decide this case properly.”

She claimed the testimony of an emergency room nurse — who examined Ezekiel at the family home the day before his death — was not given weight and fully explained by the judge when charging the jury.

But the Crown says the same nurse testified at trial Ezekiel could be suffering from “something internal.” The Crown said the comment should have been a “red alert” for the parents.

He was taken to hospital in Cardston but later died after being transported to the Alberta Children’s Hospital in Calgary.

“The jury needed to understand the fact that not just the decision was wrong, but that it was wrong such that it was criminal,” the defence said.

Even if you don’t have young children, it’s almost impossible not to feel white-hot rage at a couple who not only decided to treat that poor boy with garlic and horseradish, but have since tried to cash in on the alternative-health-expo circuit.

But that doesn’t make the Supreme Court’s decision incorrect. If we are going to hold someone criminally responsible for causing the death of their own child, we have to be sure the jury properly understood the complex evidence and the legal principles at stake.

Besides, this doesn’t get the Stephans off the hook completely. Another trial is likely – and, in theory, could result in tougher sentences than what they got the first time around.

The “defence did not call any of its own evidence”

That’s the subhed to the CBC’s online story about Raymond Cormier’s acquittal on charges of murdering 15 year-old Tina Fontaine:

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The trial, which began on Jan. 29, was originally scheduled to last five weeks, but the Crown rested its case after presenting evidence over the course of 12 days, and the defence did not call any of its own evidence.

In a criminal matter, the accused doesn’t necessarily have to call any evidence in his own defence.  For most charges – including murder – the burden of proof lies completely with the Crown, and it’s not enough to show that the accused probably did it.  Nothing less than proof beyond a reasonable doubt is required.

In this case, it certainly appears that the evidence – including conclusive proof that this young girl was actually murdered – simply wasn’t there:

The Crown had no forensic evidence or eyewitnesses directly linking Cormier to Tina’s death, and the cause of her death remains undetermined.

Instead, the Crown’s largely circumstantial case relied on secretly recorded statements made by Cormier, along with testimony from witnesses who said they saw Cormier and Tina together in the days before she disappeared from the Best Western Charterhouse hotel in downtown Winnipeg on Aug. 8, 2014.

The Crown had no forensic evidence or eyewitnesses directly linking Cormier to Tina’s death, and the cause of her death remains undetermined.

Instead, the Crown’s largely circumstantial case relied on secretly recorded statements made by Cormier, along with testimony from witnesses who said they saw Cormier and Tina together in the days before she disappeared from the Best Western Charterhouse hotel in downtown Winnipeg on Aug. 8, 2014.

[…]

Cormier’s defence lawyers, Tony Kavanagh and Andrew Synyshyn, challenged that evidence, arguing the Crown’s case was built on inferences made from recordings that are difficult to hear.

First, with no cause of death, Kavanagh argued in his closing remarks that the jury cannot know for certain that Tina died as a result of an unlawful act, and Cormier should be acquitted “on that alone.”

They argued those statements allegedly made by Cormier in transcripts prepared by police could not be verified by listening to the audio recordings and pointed out that at no point in the transcripts did Cormier admit to the killing.

Even if the jurors accept the accuracy of the words written in police transcripts, defence lawyer Kavanagh argued that rather than admissions of guilt, Cormier’s words should be interpreted as those of a man who feels guilty for not doing more to help Tina.

“That is the guilt that is eating him,” Kavanagh said.

They also challenged the memories of witnesses who said they saw Cormier with the duvet cover and suggested there are other potential suspects who might have harmed Tina.

“We say that justice for Tina Fontaine does not result in an injustice for Raymond Cormier,” Kavanagh said.

Coming so soon after the Gerald Stanley case – another in which a white man was acquitted of killing a young First Nations person – the anger over Cormier’s acquittal is already trending on social media.  For me, the real question is whether a defendant of aboriginal descent, charged with murdering a young white person, would have received the same same benefit of the doubt.

Obnoxiousness isn’t always a crime

The skeet who yelled a sexist meme at NTV reporter Heather Gillis during a live shoot has been acquitted of criminal charges:

A provincial court judge in St. John’s has ruled it could be illegal to shout a sexist slur at female reporters, but not in the case of what happened to NTV reporter Heather Gillis last year outside the city dump.

It was never a question of whether Justin Penton hurled the words at Gillis while she was interviewing St. John’s Mayor Danny Breen at the Robin Hood Bay waste management facility in April 2017. The issue for the judge was whether or not it constituted a crime in that context.

Gillis reported she was “humiliated, embarrassed and disgusted” by the comments. Breen said it made him uncomfortable.

But Judge Colin Flynn ruled an emotional disturbance does not meet the criteria for a charge of disturbing the peace.

“Something more than emotional upset and a momentary interruption in a conversation is needed to constitute the criminal offence,” Flynn wrote in his decision.

[…]

Last April, Gillis had just finished interviewing Breen, who was a city councillor at the time, and was following up with a few off-camera questions. Penton drove by in his truck and yelled “F–k her in the p—y” on his way into the dump.

A lower court judge is bound by Supreme Court of Canada decisions, and in this case it appears that Judge Flynn is following the 1992 Lohnes decision.  He even suggested that Parliament could, and probably should, add “emotional disturbance” to the Criminal Code provisions regarding causing a disturbance.

Needless to say, the University of Twitter College of Law respectfully disagrees:

1

Twitter is angry about a court decision.  Dog bites man.  But even many of Newfoundland’s blue-checkmarks are calling out the decision:

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Newfoundland’s media world is a small one, in which most local journalists know each other well, so it’s not surprising to see the province’s media personalities coming to the defense of a colleague.

But would so many reporters, commentators and entertainers be piling on this if it didn’t happen to someone from their own world?

Greenspan’s last words

Just hours before he passed away on Christmas Eve, Edward Greenspan, arguably Canada’s best-known criminal defence lawyer, submitted this critique of the Harper government’s “tough-on-crime” rhetoric (co-written with Anthony Doob) to the National Post:

“All convicted criminals belong behind bars.”

We know of no person knowledgeable about criminal justice in any democratic society who has ever proposed imprisonment for all convicted offenders. But earlier this month, Canada’s Public Safety Minister, Steven Blaney, who oversees our penitentiaries, bluntly told Parliament that “Our Conservative government believes that convicted criminals belong behind bars.” No qualifications, no exceptions.

An opposition MP understandably replied, “Mr. Speaker, that is scary to hear.” Scary? It’s more than scary. It is hard to imagine such a statement being made by someone who supposedly has knowledge about crime and the criminal justice system.

Consider this example: If we take the Public Safety Minister at his word, his government believes that all those guilty of driving with blood alcohol levels even slightly above the legal limit, not speeding and not involving an accident, belong behind bars: Go directly to jail, no need to consider anything else. Currently, only 8% of all offenders — and fewer than 2% of all young women — are imprisoned for this offence. Do the Tories propose locking up the 92% who are dealt with through other means?

[…]

Some believe that offenders learn from imprisonment that “crime does not pay.” This, too, is wrong. Published research — some of it Canadian and produced by the federal government — demonstrates that imprisonment, if anything, increases the likelihood of reoffending. For example, a recent study of 10,000 Florida inmates released from prison demonstrated that they were more likely subsequently to reoffend (47% reoffended in 3 years) than an almost perfectly equivalent group of offenders who were lucky enough to be sentenced to probation (37% reoffended).

Crime and punishment issues are far too complex and far too serious to allow the national debate to be dominated by dishonest platforms and slogans. False promises are often convincing. Whether those offering them are dishonest or ignorant matters little: Conservative crime policies will not make Canadians safer.

Explaining the Dunn non-verdict

One day in November 2012, a white man named Michael David Dunn got into an argument with four black teenagers over the loud music they were playing.  Dunn says one of the youths threatened him with a gun, and in response he grabbed his own weapon and fired in self-defence – killing one of the boys.  He then continued to fire at their vehicle as they drove away.  Police later found no weapon in the boys’ possession.

Dunn was charged with one count of first-degree murder and three counts of attempted murder.  Last night, after a lengthy period of deliberation, a jury found him guilty of attempted murder but could not reach a verdict on the murder charge, resulting in a mistrial.

Jurors deadlocked on whether Michael David Dunn, 47, murdered 17-year-old Jordan Davis or shot him in self-defense. Judge Russell Healey declared a mistrial on the murder charge.

Jurors did convict Dunn of the second-degree attempted murders of Tevin Thompson, Leland Brunson and Tommie Stornes, and also convicted him of a fourth count of firing bullets into the vehicle all four teenagers were in.

[…]

Dunn was arrested in November 2012 the day after he fired 10 shots into the vehicle Davis was in with three friends. Davis died at the scene while the other three teenagers were not hurt.

According to police and court documents, Davis and Dunn argued over the loud music in the boys’ Dodge Durango. Dunn had pulled his Volkswagen Jetta into a Gate gas station next to the Durango while his fiancée, Rhonda Rouer, went into the convenience store to purchase a bottle of wine and some chips.

Dunn asked the teenagers to turn down their thumping rap music. Thompson, who was in the front seat of the Durango, complied.

But Davis cursed and told Thompson to turn the music back up.

An argument ensued, and Dunn testified Davis threatened to kill him and had a shotgun. He said Davis was getting out of the car to kill him when he defended himself with his own gun from his glove compartment.

The other teens in the SUV and several witnesses in the parking lot said Davis never got out and didn’t have a gun. They said Davis cursed at Dunn but never threatened him.

One witness in the parking lot said Dunn screamed, “You can’t talk to me like that” before pulling out his gun and firing it at the Durango. Dunn testified he said, “You’re not going to kill me.”

After Dunn opened fire, Tommie Stornes backed the Durango up and fled into a connected plaza parking lot to get away. Dunn continued to fire, hitting the back of the Durango with three shots.

After about three minutes and realizing Davis had been shot, the teenagers returned to the Gate and 911 was called.

Attorneys for Dunn argued that the weapon Dunn said he saw could have been disposed of by the friends while in the adjacent parking lot. Police did not search the plaza parking lot that night. Prosecutors said police didn’t know to search it because Dunn fled the scene and didn’t tell his story to police until the next day when he was arrested.

Prosecutors have already announced that Dunn will be re-tried for murder, and he will almost certainly spend the rest of his life in prison on the lesser charges.  But it seems to defy logic: how could he be convicted for the attempted murder of the boys he missed, but not for the murder of the one he killed?

Hopefully, we’ll soon find out how the jury voted and why they deadlocked.  Because of questions put to the judge by the jury, it’s assumed at least one juror accepted the self-defence claim for the murder – but it’s possible that they disagreed over the distinction between manslaughter and murder (the former requires intent to harm, the latter intent to kill) or between first-degree and second-degree murder (the former requires premeditation, the latter does not).

More importantly, I understand that the distinction between the charges arises from the first volley of shots fired by Mr. Dunn, when the SUV was parked, and those he fired after the vehicle drove away.

In order to claim self-defence, Dunn had to argue that he feared for his life, and that he felt his actions were necessary to defend himself.  Although no weapon was found in the boys’ possession (or at the scene, which was not searched until several days later) it’s theoretically possible that Dunn legitimately believed Jordan Davis did have one, and that he was about to shoot.

By contrast, when the boys drove away, Dunn kept firing.  By that point, the claim of self-defence was no longer feasible – they were leaving the scene and could not be considered a threat.  Hence, his conviction on the other charges.

We still don’t know how the jury (which consisted of eight white people, two African-Americans, one Hispanic and one Asian) broke down, either.  If the whole jury accepted the self-defence claim, Dunn would have been acquitted.  But if just one juror accepted self-defence to this charge and would not be moved, that’s all you need for a hung jury.

There was, of course, a racial aspect to the Dunn trial – just like the George Zimmerman trial from 2013, a white Florida man was on trial for shooting an unarmed black teenager.  Even the prosecutor, Angela Corey, was the same.  I’m under no illusions about the gross racial disparities in the American and Floridian justice systems – see the case of Marissa Alexander, who was sentenced to twenty years in prison for firing a warning shot at her estranged husband, after a jury deliberated for only 12 minutes.  (The conviction was later overturned on appeal, and Alexander is free on bail pending her new trial in March.)

But from a legal point of view, it’s possible to make a distinction between the shots that killed Jordan Davis and those that didn’t kill his friends, and Dunn’s mindset at the time each was fired. Hopefully, his retrial for murder will leave no questions unanswered.

Why the accused in “12 Angry Men” is almost certainly guilty

Mind: blown.

Clearly, Reginald Rose, who wrote the original teleplay as well as the film script, intended the unnamed defendant—we’ll just call him The Kid, as the jurors generally do—to be innocent. There isn’t some hidden twist that nobody’s ever noticed until now. But in attempting to make the scenario as dramatic as possible, Rose inadvertently and unwittingly made it almost impossible for The Kid not to have killed his old man. Is he guilty beyond the shadow of a doubt? No. If he’s innocent, however, then so was O.J. Simpson, using pretty much the exact same arguments. (I’m indebted to Vincent Bugliosi’s Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder for much of the following analysis. For anyone harboring any doubt about Simpson’s guilt—or about whether Oswald acted alone in killing JFK, for that matter—Bugliosi’s books, though abominably written, are invaluable. He cuts through the bullshit.)

Here’s the evidence that The Kid committed murder, as discussed by the jury in the film:

  • A few hours before the murder, The Kid was heard loudly arguing with his father, at one point shouting words to the effect of, “I’m gonna kill you!”
  • An elderly man in an adjacent apartment testified that he saw The Kid flee the murder site immediately after he heard the old man scream.
  • A woman who lives across the street from the murder site testified that she actually saw The Kid stab his father to death through the windows of a passing elevated train.
  • The Kid’s alibi for the time of the murder was that he was at the movies, but when questioned the very same night, he couldn’t remember any details of the pictures he saw—titles, stars, anything.
  • The murder weapon—a switchblade knife—was, by The Kid’s own admission, identical to one he owns, and had been seen in his possession. The Kid claimed to have lost his knife that very night.

Rose, an expert at dramatic construction, has his hero, Juror No. 8 (Fonda in the movie), undermine each of these pieces of evidence individually, assisted along the way by those who’ve defected to the Not Guilty camp. Some items in this impromptu defense are more persuasive than others. The most satisfying, both for its deployment at the climax (it’s the argument that finally convinces E.G. Marshall, playing the most coldly rational juror) and in terms of an appeal to logic, is the observation that the female witness had marks on her nose indicating that she regularly wears eyeglasses, which she wouldn’t have had time to put on when awakened by the victim’s screams in the middle of the night. Far less impressive is the discussion of The Kid’s faulty alibi: Fonda challenges Marshall to account for his actions on each of the last several nights, going back further each time Marshall succeeds, then feels vindicated when Marshall finally gets the title of a film he saw four days earlier slightly wrong (The Remarkable Mrs. Bainbridge vs. The Amazing Mrs. Bainbridge) and stumbles over its no-name stars. It wasn’t even the film he’d actually gone to see (which he names without hesitation), but the second feature.

None of this ultimately matters, however, because determining whether a defendant should be convicted or acquitted isn’t—or at least shouldn’t be—a matter of examining each piece of evidence in a vacuum. “Well, there’s some bit of doubt attached to all of them, so I guess that adds up to reasonable doubt.” No. What ensures The Kid’s guilt for practical purposes, though neither the prosecutor nor any of the jurors ever mentions it (and Rose apparently never considered it), is the sheer improbability that all the evidence is erroneous. You’d have to be the jurisprudential inverse of a national lottery winner to face so many apparently damning coincidences and misidentifications. Or you’d have to be framed, which is what Johnnie Cochran was ultimately forced to argue—not just because of the DNA evidence, but because there’s no other plausible explanation for why every single detail points to O.J. Simpson’s guilt. But there’s no reason offered in 12 Angry Men for why, say, the police would be planting switchblades.

[…]

  • The Kid coincidentally happened to lose his knife within hours of his father being stabbed to death with an identical knife.

The last one alone convicts him, frankly. That’s a million-to-one shot, conservatively. In the movie, Fonda dramatically produces a duplicate switchblade that he’d bought in The Kid’s neighborhood (which, by the way, would get him disqualified if the judge learned about it, as jurors aren’t allowed to conduct their own private investigations during a trial), by way of demonstrating that it’s hardly unique. But come on. I don’t own a switchblade, but I do own a wallet, which I think I bought at Target or Ross or some similar chain—I’m sure there are thousands of other guys walking around with the same wallet. But the odds that one of those people will happen to kill my father are minute, to put it mildly. And the odds that I’ll also happen to lose my wallet the same day that a stranger leaves his own, identical wallet behind at the scene of my father’s murder (emptied of all identification, I guess, for this analogy to work; cut me some slack, you get the idea) are essentially zero. Coincidences that wild do happen—there’s a recorded case of two brothers who were killed a year apart on the same street, each at age 17, each while riding the same bike, each run over by the same cab driver, carrying the same passenger—but they don’t happen frequently enough for us to seriously consider them as exculpatory evidence. If something that insanely freakish implicates you, you’re just screwed, really.

And that’s just one improbability. In order to vote for acquittal, you would need to accept everything outlined above. Some of these coincidences are individually believable—it’s quite possible that both eyewitnesses honestly convinced themselves they saw The Kid, when they actually just saw a vague figure. But as Bugliosi notes of both Simpson and Oswald, in the real world, you cannot have that much damning evidence pointing at your guilt and still be innocent, unless all of it was deliberately manufactured. (The one place where Bugliosi is shaky is that he won’t concede that some of the evidence in the Simpson case may have been planted by cops who genuinely believed O.J. was guilty, but wanted to seal the deal.) As stirring as it is to watch Fonda upend his fellow jurors’ assumptions and prejudices, their instincts were sound. The Kid is almost certainly guilty. What a hell of a downbeat, realistic twist ending that would be, eh? Had the movie been made during the Watergate era, maybe that’s how it would have turned out.

Much more discussion here.

Unrecommended legal strategies (II)

There’s an old (possibly apocryphal) American case where the Judge said, “The defendant says, ‘as God is my judge, I cannot pay this tax.’ He’s not. I am. You do.”  We could use someone like that presiding over the Via Rail bomb-plot case:

A terror suspect charged in an alleged plot to attack a Via Rail passenger train is having difficulty finding a lawyer who will try convincing a court to judge him against the Qur’an.

Chiheb Esseghaier appeared in a Toronto court via video link on Monday to discuss his attempts to find legal aid representation — a process which has so far been unsuccessful due to the specific and unusual demands he has made.

“I want that the lawyer help me to change the reference of my case from the laws used by humans to the laws of the holy book,” he told the court. “I cannot take a lawyer who is not able to fulfil my need.”

[…]

As the Crown prosecutor told the court the last potential lawyer offered to Esseghaier had been unable to represent him based on his demands, the Montreal man repeatedly asked to be allowed to comment.

“It’s not me I refuse the last lawyer,” an adamant Esseghaier said.

“He write on a piece of paper, he write and he sign that he is not able to convince the court to change the reference of my case from the Criminal Code to the holy Qur’an.

“He said to me I am not able to fulfil your need, so what I can do? I cannot accept him.”

Esseghaier’s comments on Monday echoed previous statements in which he’s said he doesn’t recognize the secular authority of the Criminal Code in judging him.