Friday, 1 April 2016

Incredibly, It's Even the Defense Lawyer

One person I was definitely not willing to "blame" for the Ghomeshi verdict was his lawyer, Marie Henein. Defense lawyers sometimes have a bad reputation, but I respect them for doing their job of trying to get acquittals. If the system is one in which arguing about hair extensions is how you do that, I don't blame them for arguing about hair extensions. That needs to not work, then they'll stop doing it.

So I don't blame Henein for defending Ghomeshi or for the approach she took. If the judge was better then the verdict would have been better and Ghomeshi would have every right to blame her for advising him to put forward a stupid defense.

However, CBC's Peter Mansbridge did an interview with Henein this week to talk about the trial.

In that interview she said it was the right result and a principled verdict.

In that interview she criticized Tom Mulcair for tweeting with the hashtag #IBelieveSurvivors, saying that believing survivors wasn't and shouldn't be a legal principle, and that politicians shouldn't weigh in on this kind of thing.

In that interview she talked about the presumption of innocence. from a CBC article summarizing the interview:
"The legal system is premised on our fundamental belief that if you are going to a accuse me of a crime you will have to prove it, " she said.
Last post I talked about the cognitive dissonance is Horkin's ruling - he clearly knows what he was said was wrong since the events before and after a choking at not relevant to whether choking is criminal. This week, let's take a good look at what Henein said about the presumption of innocence.

What she said probably sounds about right to a lot of people who hear it. Truthiness aside, it is false, and she knows it is false. If Mansbridge had asked her, "In our legal system, is it the responsibility of the victim of a crime to prove the guilt of the perpetrator?" she would say, "No, it's not." Maybe throw in, "You know what I mean."

I do know what she means. She means just what I said when I wrote my last post two days ago: In Horkins' ruling, the job of prosecuting Ghomeshi is shifted to the victims from the Crown. That is the norm for sexual assault.

The job of prosecuting offenders is the job of the Crown. If you are the victim of a crime, you are supposed to report it to the police so that our society can find out what happened through the investigative process, and punish perpetrators of crimes through the prosecutorial process. You do not have to prove anything, rather, your statement of what happened is a piece of evidence used to get at the truth and to prosecute.

Let's think about an imaginary trial. The prosecution opens their case by calling Person A to the stand and asking them, "What happened on the night of [insert date]?". Person A says, "Person B choked me." The defense does not cross examine. The prosecution rests. The defense rests. There is no other evidence at all. Is that a guilty verdict? Is a person stating that something happened, in court and under oath, with literally no surround evidence for or against their statement sufficient proof that the thing happened to get past reasonable doubt?

If it isn't, then I think prosecutors and police ought to be a lot clearer about this with victims of crime. They need to tell them, "Look, in absence of physical evidence, there is zero chance of conviction. You simply won't be believed, or at least not believed to the extent necessary for a guilty verdict."

But police and prosecutors don't have to tell us that, because if the charge is assault and that is the trial our system returns a guilty verdict. Sworn evidence is, by default, believed. In any trial there will be more evidence than just the unquestioned statement of a single individual, and various pieces of evidence will weigh against one another. But the default setting is to believe what witnesses say on the stand, under oath.

This is what makes Horkins' and Henein's comments about believing witnesses and about hashtags infuriating. Of course we should believe women who say, under oath, they were assaulted by a man. That is not the same thing as saying that no evidence could possibly contradict them, it is not the same thing as saying that a single statement constitutes an entire trial, and it not the same as saying we can't have reasonable doubt about whether it happened. But if the default setting is not believing sworn evidence, then there is not much reason to have witnesses at trials anyway.

Reading this verdict, and hearing Henein's comments about the trial, I am left believing that my fictional one-statement-trial would definitely result in a conviction for assault, but that it would not for sexual assault. That if all other things balance out and we are simply left with the statement of a single women saying a man attacked her, a not-guilty verdict will be returned.

It is the absolute right of the defendant to choose not to take the stand in their own defense, and to not have their silence held against them. It is not remotely their right to have favourable assumptions made about what they would have said had they taken the stand. A trial where a woman gives evidence against a man and the man remains silent is not she-said-he-said. It's she-said-and-we-rolled-our-eyes, because the judge and the lawyers are rolling their eyes, and they are our representatives.

Henein's statement that Mulcair, himself a lawyer, should not have weighed in it bizarre and stupid. Mulcair thinks there is a crisis of confidence in the justice system regarding sexual assaults. Mulcair is right, sexual assaults are under-reported, and cases like this make it worse. If it isn't the job of politicians to try to fix the legal system so that the public can have confidence in it, whose job is that? Henein said that tweeting hashtags was unprincipled but that it gets votes. "Does it?" Mansbridge asked her. "It might," she said.

Well, defending a system where victims of sexual assault are not believed is unprincipled, but it sure makes your job as a defense attorney easy. "Does it?" Mansbridge might as me.

Hell yes it does.

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