Written by Roy Black
I enjoy following trials and dissecting cross-examinations. An outstanding example of confrontation is currently proceeding in Canada. Jian Ghomeshi is the celebrity defendant in the Canadian “Trial of the Century.” He is being defended by Marie Henein, a protege of the late Eddie Greenspan, who was Canada’s best known criminal lawyer. Eddie was a friend and we worked some cases together. So the trial caught my attention for a number of reasons but Henein cross-examinations made it all worthwhile.
Some reporters live-tweeted the proceedings allowing a window into the courtroom action. They reported testimony and observations which gives me enough material to work with.
The accusations against Ghomeshi first arose in the fall of 2014. He is a popular folk artist turned radio personality and had an enormously popular program with the Canadian Broadcasting Corporation called Q.
The Pre-Trial Publicity
The Toronto papers gleefully reported accusations that Ghomeshi had physically mistreated women he met socially. There were dozens of front page stories and interviews, as a growing number of women came forward to make allegations of brutal conduct.
Ghomeshi foolishly sought to defend himself to CBC executives by showing them pictures from his smart phone. Chris Boyce described them: “To be very clear, we saw evidence that he had caused physical injury to a woman. This was very different than the story he had told us up until that point, you know, being interested in rough sex or, you know, sex that was not vanilla, as he referred to it.” The CBC fired Ghomeshi saying it was due to graphic evidence that he had caused physical injury to a person.
Ghomeshi then made it worse by defending his actions in a 1,500 word statement on Facebook. He wrote he had consensual “rough sex” with women and is the victim of a disgruntled ex-girlfriend. Ghomeshi admitted in the Facebook post that his sexual appetite includes “role-play, dominance and submission” with partners, but that these acts always have been consensual.
“Let me be the first to say that my tastes in the bedroom may not be palatable to some folks. They may be strange, enticing, weird, normal, or outright offensive to others. But that is my private life. And no one, and certainly no employer, should have dominion over what people do consensually in their private life.” He declared that he has “done nothing wrong.” After the Toronto Star reported several more allegations days later, Ghomeshi posted that he would confront the allegations “directly,” but wouldn’t discuss them with the media.
CBC’s The National and As It Happens aired interviews with an unidentified woman who said Mr. Ghomeshi beat her about the head and threw her out of the house. The actress Lucy DeCoutere alleged to half a dozen news outlets that she had been choked and slapped.
Since 2014, more than a dozen women have alleged that Ghomeshi assaulted them without consent during what they thought were supposed to be vanilla romantic encounters. One woman, claims he dragged her to her knees and punched her in the face three times with a closed hand. Without asking first.
Before Mr. Ghomeshi was officially charged with sexual assault, he had been tried and convicted in the court of public opinion. Marie Henein told the court that Ms. DeCoutere “has done no fewer than 24 media interviews.” As it turned out, the intense media coverage assisted the defense. All these interviews would be used to impeach DeCoutere, similar to the use the TV videos of the crime scene techs in the O.J. Simpson trial.
Lucy DeCoutere, had been the star of the long-running TV and film series “Trailer Park Boys.” DeCoutere, who also serves as a captain in the Royal Canadian Air Force, was the first woman who made allegations against Ghomeshi to speak on the record about her experience. DeCoutere told the Toronto Star that she went on a date with him and alleges that when they returned to his home, he pressed her up against a wall, choked her and slapped her across the face several times. Author and lawyer Reva Seth became the second woman to go public, writing in the Huffington Post that Ghomeshi put his hands around her throat and sexually assaulted her,
On day one of testimony, DeCoutere told Justice William B. Horkins that the assault occurred at Ghomeshi’s home in early January 2003, and that it was sudden and violent and left her traumatized. She said that a visit to his home that started out with her showing Ghomeshi “kooky yoga moves” ended up with her leaving in a taxi and feeling thrown out “like trash.”
The witness, under direct questioning from Crown attorney Michael Callaghan testified she’d neither seen nor had any further contact with Ghomeshi after that night in January 2002, when, she testified, he’d yanked her hair hard (not for the first time, which had occurred a few weeks previously during a kissing session in his car), forced her to the floor and delivered three sharp blows to the side of her head.
The highlights of the cross-examination:
Ms. Henein noted that the woman had told media that, during her first date with Mr. Ghomeshi, the two had been in his car when, with no romantic build-up, “he reached over and grabbed my hair very hard, and pulled my hair back.” But during her testimony, in fact, the woman revealed they had been kissing when the alleged assault occurred.
At first, she tried to say the Star had gotten her words wrong, that reporter Kevin Donovan “twisted my story.” But then Ms. Henein showed her a transcript of her interview with The National in which she gave the same account.
“When you went on national television to tell your story, I’m going to suggest to you that you lied.”
“I did not lie.” She claimed she had given her interviews in the first week of publicity. “I’m telling you that, when I went, I had a day to sit with things, with memories, and I was nervous, and if I had done this interview a week, two weeks later, it would probably have had much more detail.”
Ms. DeCoutere explained what she was doing: ‘I’m gonna talk to the press before I talk to police, My plan was to talk to the press.”
Calling her a publicity hound, Ms. Henein noted Ms. DeCoutere had told a reporter that, by being a public figure who had identified herself as a survivor of sexual assault, she had given new visibility to the issue: “It’s sort of like when David Beckham attaches himself to Armani underwear.”
“That’s a terrible analogy,” Ms. DeCoutere admitted.
She asked the witness if, after the alleged assaults, she had had anything more to do with Ghomeshi. She said no. Henein remarked that on six occasions she told police detectives she’d had nothing more to do with him. Henein also noted that the woman told the court that when she saw him on TV or heard him on radio, she flipped the off switch. Henein cautioned her several times. “Is there anything you want to tell me?”
This is a dangerous method to set up impeach. The witness could volunteer the damaging material and undercut any cross-examination. But fortunately for Henein that didn’t happen here.
Henein questioned her on her reaction to hearing or seeing Ghomeshi on television, asking her to look at the answers she gave to police.
“I tried to put it out of my head… I don’t listen to Q ever,” she said, according to a clip from her statement played in court. “Every time I see it on television, I’m reminded of it and I try to put it away.”
Henein starts using the witness’s own words, saying that she “managed to navigate this” by avoiding his voice on television for “years and years.”
“For years, you’re turning off the radio and television…because you were ‘retraumatized every single time.'”
Henein then detonated that testimony. She set the stage with a video clip from the witness’s report to police in 2014: “I’ve never listened to Q ever…even now with the new guy,” she said.
Henein plays a short clip of the witness at Play in 2003, the third time that the witness attended one of the tapings to see Ghomeshi.
“You look happy in that, would you agree?” Henein asks. “This was after the allegations in the car, right?”
The witness responds that she looks happy.
The witness looks “happy,” Henein told the court, implying she was in no way traumatized. The lawyer noted that “six times, under oath,” the witness said she “had no further dealings” with Ghomeshi.
She then displayed an email for all to see on the jumbo court screen. Henein tortured her by showing it one line at a time.
The email written from an email address that the witness admits was hers on Jan. 16, 2004, around 3 a.m.
The subject line is Play>Boy. It was sent about a year after the alleged incident.
The email begins with: Hello Play>Boy,
Good to see you again!
Hello Play>Boy!” Henein exclaims.
“This was the man who caused such trauma that the witness cannot listen to his voice?”
Email: Your show is so great.
Henein: “You’re watching him!”
Your show is still great,” the email continues. “When you take a break from ploughing snow naked, take a look at [website of a music video the complainant was involved in].”
“If you search you will find the video… The song is okay – has a T.Rex flavour to it.
“If you want to keep in touch this is my email!!!!” She also includes her phone number.
Henein makes a point of telling the court to note that the email’s last line includes four exclamation points.
You didn’t get a response did you?” Henein says, of the email. “And six months later, you write to him again.”
On June 22, 2004, she sent Ghomeshi another email. It’s from an email address she admits belongs to her.
“So you’re thinking of him at 1:46 in the morning on June 22nd, correct?” Henein asks, referring to the timestamp on the email.
Hi Jian,” the second email included as evidence begins.
“I’ve been watching you on Screw The Vote.”
Henein repeatedly asks the witness if she was watching him on TV, her voice becoming louder each time.
The witness denies that she was watching the show, saying that she wanted to reach out to Ghomeshi to ask about what she alleges happened on their dates.
The email continues: “I thought I’d drop you a line and say hello. Hope all is well. Say hello to [mutual friend] for me if you see him.”
The email includes an attachment of a photo title: beach1.jpg
Henein does not put the photo on display on the court screen, but shows it to the witness.
“I know the photo, I was using the photo as bait.”
The photo shows her in a bikini, Henein says. The witness agrees.
This is not an angry photo,” Henein said. “It’s a photo of your entire body in a string bikini.”
Right after this exchange, DeCoutere’s lawyer jumps out of his seat and asks that the judge not release the photo in question to the media as part of the evidence. Henein couldn’t have scripted that piece of theater better.
When witnesses are surprised and caught in an inconsistency or a lie, they become rattled. All their preparation dissolves and they will make up an excuse in the moment. If enough pressure is applied, like Chris Christie challenging Marco Rubio in the New Hampshire debate, even the most polished performer can fall apart. The spur of the moment answer only make it worse. She came up with a story that she was “baiting” Ghomeshi, hoping he would call so she could confront him. This is the kind of moment that trials turn on. Unexpected yet unforgettable.
“I wanted Jian to call me so I could ask him why did he violently punch me in the head. I wanted to talk to him. The email was bait. To call me so I could get an explanation as to why he had punched me in the head.”
One reporter: “Bait. The word hung in the tense courtroom.” More like bait and switch.
In a measured tone, not badgering, not confrontational, Henein countered: “You think about that before I take it one step further.”
She goes on to provide a website address for him to watch a video of her “when you take a break from ploughing snow naked,” gives her e-mail address and phone number and asks him to get in touch.
“You’re now inviting the man who traumatized you to get in touch with you?” she asked incredulously.
The bikini photo was upping the bait and blatantly flirtatious, the woman acknowledged. She was hoping Ghomeshi would bite. This woman who’d said earlier of the defendant: “I have never communicated with him. I never have, I never will.”
Henein asks why there seems to be an inconsistency with the witness’s memories of what happened before going to the house. In her testimony yesterday, she says she went to a pub with Ghomeshi and the friend who attended the taping with her. But as the witness reads her statement to the court, it makes no mention of stopping at a pub. A transcript from an interview with CBC radio that did not mention kissing Ghomeshi, contradicting courtroom testimony was cited by Henein as proof the witness’s “truth keeps changing.”
“I’m telling you this [police] statement was done early with my memories,” she said. Then, more firmly, she says: “I was nervous.”
Henein responds by picking up a transcript of an interview conducted between the complainant and CBC.
“Police treated me with the utmost respect and care…there was nothing shameful about it… It was an emotional day, but it was not as [difficult] as I was expecting,” Henein reads, quoting the woman.
The lawyer puts down the interview transcript and then looks at the witness, saying that it sounds as if, from the statement, she was not nervous when she spoke with police.
You’re now inviting the man who traumatized you to get in touch with you?” she asked. “You haven’t let me explain,” the witness interjected. Henein continued questioning: “Are you prepared to admit you lied under oath?” “No,” the witness said, “I did not want to see him.” The flirtatious email was “bait,” she said: “It was bait to call me so I could get an explanation as to why he would violently punch me in the head. I had no interest in him,” she said: “I was in a committed relationship.”
Right after this deadly cross-examination, the Crown announced “No re-examination.” Obviously they were afraid to make it worse, if that was possible. It sounded to me like an abject surrender. Her credibility was demolished beyond repair. As one reporter noted: “Her evidence of such jaw-dropping self-immolating proportions that it verged on farce.”
The next day media lawyer Iris Fischer arguing that a photo of DeCoutere in a bikini, which she sent to Ghomeshi a year after the alleged sexual assaults, should be released to the public and the media.
“There is a strong presumption that the public should see what you see,” Fischer says, addressing Horkins. “We know it came at the end of a long cross-examination and it relates to the witness’s credibility.”
The judge sealed the photo so inquiring minds are unsatisfied.
Brilliant? A Perry Mason moment? Not exactly. It proves getting the facts and using them to advantage makes a great cross examiner. Neither the witness nor the prosecutor were aware the defense had this material. If they had, they would have trotted it out on direct to prevent damage like this. The real work for the trial lawyer making the best use of the material. In a word – tactics.
I read a magazine profile of Henein published shortly before the trial. She employs the type of preparation I am always harping on. The article states Henein would paste photos and character sketches of the key players on whiteboards on her conference room walls. She collected every word the witness ever uttered to police or friends on social media in color-coded folders on her boardroom table. Obviously this worked to perfection in the Ghomeshi trial.
She would choreograph every move in the cross examinations. She learned from Greenspan to think through the theory of the case and workshop the cross-examinations, every question scripted and every possible plot twist explored.
While reading all the news articles I could find, I was surprised by personal attacks against Henein. She was roundly criticized for defending a man charge with abusing a woman. There was an article in the Ottawa Citizen and the first line was, “There’s a special place in hell for women who don’t help other women,” quoting Madeline Albright who said, during the last days of the New Hampshire primary, women must support Hillary. To what the purpose? That only men should be cross-examining sexual assault complainants? Or perhaps challenging their testimony at all is politically incorrect. Unfortunately that seems to where we are headed.