Weekend Reads Jian Ghomeshi trial: why the prosecution's case fell apart

19:52  07 december  2016
19:52  07 december  2016 Source:   The Guardian

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  Guilty verdict still possible in future Jian Ghomeshi cases, lawyer says Jian Ghomeshi was found not guilty of sexually assaulting three women last week, but the disgraced radio host’s legal woes are far from over.

The case against Jian Ghomeshi didn’t really begin to crack until the emails turned up. On the opening day of the trial , the former radio presenter’ s lawyer, Marie Henein, peppered the first of three complainants with questions. How long did the police interview last? “So what she did, in a very masterful and forceful way, was attack everything around it, and hope there’ s not enough left the judge sees as credible.” Henein’ s defense was also aided by flubs on the part the prosecution .

(FLASHBACK) Lauren Southern last month: " Jian Ghomeshi will be found not guilty. Here' s why ." Lauren SouthernRebel Commentator. (NOTE: This column originally appeared on February 16, 2016.) In November 2014, Jian Ghomeshi was charged with four counts of sexual assault and one count of “choking to overcome resistance." Looks to me like Ghomeshi was given a pass by the police and the prosecution . You would have to try hard to be that incompetent. They allowed the case to fall apart in the courtroom.

The case against Jian Ghomeshi didn’t really begin to crack until the emails turned up.

On the opening day of the trial, the former radio presenter’s lawyer, Marie Henein, peppered the first of three complainants with questions. How long did the police interview last? Did she realize that she was wrong about the color of the defendant’s car?

The questions showed some holes in the witness’s memory as she recalled events from more than a decade ago. But it was not the ruthless cross-examinations for which the steely Toronto defense lawyer has become notorious.

Statement from Kathryn Borel on Jian Ghomeshi

  Statement from Kathryn Borel on Jian Ghomeshi Statement from Kathryn Borel on Jian GhomeshiHi everyone. Thank you for coming out and listening. My name is Kathryn Borel. In December of 2014, I pressed sexual assault charges against Jian Ghomeshi. As you know, Mr. Ghomeshi initially denied all the charges that were brought against him. But today, as you just heard, Jian Ghomeshi admitted wrongdoing and apologized to me.

Jian Ghomeshi trial : Why the prosecution ' s case fell apart . Jian Ghomeshi 's trial : a timeline. #IBelieveSurvivors erupts following Ghomeshi verdict. TechCrunch TV News.

Related: What I wish I’d known before testifying in the Ghomeshi trial . “I should warn women about him,” I tell a friend days later. In this case , pick the prosecution team to go after. It fell apart because all three women grossly failed to tell the truth. It was one of the weakest cases that many people have ”From “Full text: Jian Ghomeshi ’ s Facebook post on why he believes CBC fired him”.

That came on day two. The witness had testified that Ghomeshi yanked her hair and punched her three times in the side of the head – a traumatizing event that caused her new pain whenever she heard Ghomeshi’s voice.

With a cool demeanor, Henein displayed a blown-up copies of emails the woman sent Ghomeshi after the alleged assault. “Good to see you again!” read the first email. “Your show is still great.” Another email contained a photo of the woman in a bathing suit.

“Your truth keeps changing,” Henein said.

On Thursday, to the roars of protesters outside the Old City Hall courthouse, Judge William Horkins agreed. In an scorching 25-page verdict, Horkins acquitted the former CBC host of four counts of sexual assault and one count related to an accusation of choking.

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Loading disgraced radio host Jian Ghomeshi .

Throughout Jian Ghomeshi ’ s trial , we brought you insights from a panel of criminal defence attorneys who have worked on behalf of other people charged with sexual assaults. Here, they discuss Thursday’ s not-guilty verdict, and explain why Ghomeshi ’ s second sexual assault trial , on June 6, may reach a very different conclusion. A trio of legal experts on why the case is going so poorly for the prosecution .

It was not an outcome many could have predicted even a few months ago. And it might not have happened without Henein, whom one former client described as “my shark”.

The accusations against Ghomeshi first emerged in fall 2014, shocking the country as eventually more than 20 women and one man came forward to say he had slapped, punched, bit, choked, groped or smothered them. But in the courtroom at Old City Hall, any certainties about the case quickly dissipated.

Henein’s trial strategy relied on the witnesses’ failure to divulge all the details of their relationships with Ghomeshi to police from the start, and on scrutinizing small inconsistencies in their stories.

A protester is dragged away following the verdict.  © Provided by Guardian News A protester is dragged away following the verdict. 

It was not unusual for Henein to dwell for a half an hour on a single detail that had shifted as women spoke to police, the media and at trial: did Ghomeshi choke you with one hand or two? Did he yank you by your hair extensions, or were you not wearing hair extensions at all?

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  Rehtaeh Parsons' dad sums up crushing reality of Ghomeshi verdict A judge’s decision to acquit former broadcaster Jian Ghomeshi last week highlights how the justice system is designed to fail cases of sexual violence that actually make it to court, the father of Rehtaeh Parsons says. “We pontificate the institution of justice while claiming it is what makes our society civil, but there is nothing civil to be found in the staggering toll sexual violence takes on our communities and the devastation it causes victims and their families,” Glen Canning wrote on his blog Friday.His daughter, Rehtaeh, was 17 when she was taken off life support after attempting to hang herself in 2013.

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Status: 404 Not Found. Jian Ghomeshi .

Whether those lapses occurred on purpose or due to the normal failures of memory, they permitted Henein to paint the women as unreliable on the specifics. The verdict revealed that those inconsistencies combined to poison the women’s central accusations.

Delivering his judgment on Thursday, Horkins said the witnesses’ accusations were “tainted by outright deception”.

Henein never put Ghomeshi on the stand, and she never, through her questioning, presented an alternative explanation for the events described by his accusers. (Before the trial, Ghomeshi claimed publicly that the encounters, while rough, were consensual.)

To many, the effect was that the trial of Jian Ghomeshi became a test of his accusers.

But her strategy was a risky one, said Luc LeClair, a Toronto lawyer who has defended several high-profile criminal suspects. Without Ghomeshi’s explanation to offer, Henein’s hands were tied when it came to confronting the women’s core testimony.

“She must have decided that he simply couldn’t testify,” LeClair said. “And with that decision, she had no other version of events to put forward. How are you going to confront the witness about their central narrative?”

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THE CASE . Justice William Horkins found Jian Ghomeshi not guilty of all charges on Thursday in the first of the former CBC broadcaster’ s two sexual-assault trials . The prosecution : Colleagues described Crown counsel Michael Callaghan, 43, to The Globe as a firm but fair prosecutor respected by the courts. He is known for successfully prosecuting Zhou Fang, a Toronto man who fatally shot his abusive father with a crossbow in 2010 – a case the presiding judge deemed “exceptionally difficult,” according to media reports at the time.

“She doesn’t directly say whether it happened or it didn’t happen, because she can’t,” he continued. “So what she did, in a very masterful and forceful way, was attack everything around it, and hope there’s not enough left the judge sees as credible.”

Henein’s defense was also aided by flubs on the part the prosecution. The Crown’s witnesses were firm in their testimony and appeared ready for Henein’s notoriously aggressive mode of cross-examination. But when Henein began to lay out emails, letters, and photo evidence that she said contradicted their testimony, the women and Crown prosecutors seemed equally thrown.

She startled the first witness with an email the woman sent to Ghomeshi containing a photo of her in a bikini. The email, sent months after Ghomeshi allegedly punched her and yanked her hair, appeared to contradict the woman’s testimony that after Ghomeshi assaulted her, she was too traumatized to even hear his voice.

The second witness to testify was Lucy DeCouture, an actor who claimed Ghomeshi choked and slapped her. Henein confronted DeCoutere – who waived the publication ban on naming witnesses – with a photo showing the two of them “cuddling” in a park the day after the alleged assault. In a moment of high drama, Henein asked DeCoutere to read a handwritten letter she wrote to Ghomeshi following their encounter. The letter read: “I love your hands.”

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Linda Christina Redgrave is witness No. 1 in Jian Ghomeshi ' s trial . Her evidence fell apart when Henein produced two emails Redgrave had sent Ghomeshi after the alleged attacks — one with a Victims are not read their rights,” she said. “In a high profile case , they are not giving me my rights.

In the eyes of the law, Jian Ghomeshi is not guilty. He has been acquitted of four counts of sexual assault and one count of choking. As the only named witness in the case against Jian , I spent 12 months preparing for my two days of testimony. My testimony had fallen apart . All I know is that the trial has been immeasurably more traumatic than what Jian did to me.

Henein treated each new submission like a bombshell, sometimes ending a day of testimony on a cliffhanger. “Do you want to take a moment and tell the truth of the real conversation that was going on?” she asked DeCoutere on her first day of testimony. “Not the one you’ve been reporting to the media, not the one in the press releases.”

DeCoutere gave a puzzled response, and Henein asked for court to be adjourned for the day.

Lucy DeCoutere. © Provided by Guardian News Lucy DeCoutere.

Pressed to explain their lapses, the witnesses replied that they had forgotten the letters, the flowers, the emails. As the trial wore on, two of the women gave prosecutors new information. DeCoutere told the Crown that she sent Ghomeshi flowers after the alleged attack. A third witness, who claimed that Ghomeshi squeezed her throat, told prosecutors that after the attack, she had a consensual sexual encounter with Ghomeshi at her house. During her testimony, she acknowledged that Henein’s discovery of the other witnesses’ emails had compelled her to check her own account.

Finally, Henein used communications between DeCoutere and a friend to suggest a vendetta against Ghomeshi. On Thursday, Horkins said the 5,000 messages between the two showed an “extreme dedication to bringing down Ghomeshi”.

The admissions raised questions about the depth of the prosecutors’ preparation. The crown is prohibited from coaching the witness to the point of ironclad testimony, but it still has some ability to prepare them for tough questions about the evidence.

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  Association of Alberta Sexual Assault Services reaches out to survivors in wake of Ghomeshi verdict The acquittal of former CBC broadcaster Jian Ghomeshi has sparked a powerful conversation about sexual assault, and Alberta advocates believe it will act as a necessary catalyst for change. Ghomeshi, 48, was acquitted last week on four counts of sexual assault and one count of overcoming resistance by choking involving three women. The heavily publicized trial […]The acquittal of former CBC broadcaster Jian Ghomeshi has sparked a powerful conversation about sexual assault, and Alberta advocates believe it will act as a necessary catalyst for change.

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Going the summary route means the prosecution , after looking at exactly what Ghomeshi is alleged to have done, must have been satisfied the On the straight indictable choking charge, Ghomeshi opted for trial in the province' s lowest court, the Ontario court of justice. 5 key facts about the Jian Ghomeshi case . CTV Toronto: Man rescued after falling in sinkhole. Air Date: December 1, 2016.

Observers wondered why Callaghan’s team or the women’s attorneys did not comb over the witnesses’ communication with Ghomeshi with the same ferocity as Henein. The best explanation may be that anything the Crown finds, it must disclose to the defense. In DeCoutere’s case, she told police she could not find old communications because she no longer had access to that email account.

Victims’ advocates scrutinized the proceedings as a key test of a judicial system they see as stacked against women reporting abuse and sexual violence. Numerous appellate court decisions have limited judges’ ability to intervene in particularly brutal cross-examinations. And the defense bar, some legal experts argue, has a history in assault trials of trying to imply women’s sexual histories.

Critics of Henein’s style have not been able to point to anything she said as unethical. They have voiced concerns, however, that the way her cross-examination unfolded could deter victims of sexual violence from coming forward in the future.

High-profile losses for prosecutors can contribute to broad factors that discourage people experiencing sexual assault from working with law enforcement, said Verona Singer, the head of victim services for the Halifax regional police. Without commenting on the details of what took place at trial, she said: “I think there are many victims who will look at this outcome and say, ‘This is what we expected. The criminal justice system is not a good place for victims to go.’”

But the attorney for DeCoutere, Gillian Hnatiw, said it was unfair to lay much blame at Henein’s feet.

“The witnesses were treated, quite frankly, in keeping with how the Canadian criminal justice system permits them to be treated,” Hnatiw said. Henein’s duty was to take fullest advantage of that permissiveness. “It’s a system set up to determine criminal responsibility beyond a reasonable doubt. It advantages the accused in every way, as it is constitutionally required to do.”

Hnatiw acknowledged that it was frustrating to see Henein create reasonable doubt over behavior that is normal for abuse victims, such as continuing to have a relationship with their assailant or waiting a long period of time to make a report. But Henein wouldn’t have been able to portray those behaviors as suspicious if the society around her didn’t embrace those same biases, Hnatiw said.

“Reasonable doubt is based on the perspective of whoever is the finder of fact,” Hnatiw said. “They’re always bringing their own personal experiences and biases and perspectives to the ‘reasonable’ standard. And that’s where I think we have to work hard to educate people and push them to align what they think is reasonable.”

Ghomeshi trial: Everything wrong with sexual assault law .
Brenda Cossman, a law professor at the University of Toronto, says the trial will discourage victims from coming forward.But that does not make the acquittal any less disturbing. The trial was literally a performance in everything that is wrong with sexual assault law, or more specifically, the way our sexual assault law’s are applied. The Criminal Code provisions on sexual assault are actually pretty good — there is an expansive definition of consent or more specifically its absence, and the Supreme Court of Canada has insisted that consent be positive and on-going. But the social norms through which these laws are applied still leave a lot to desired.

Source: http://ca.pressfrom.com/news/weekendreads/-4059-jian-ghomeshi-trial-why-the-prosecutions-case-fell-apart/

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