A Tale of Two Cities

May 2, 2016 Cross-Examination

dickensNew York, April 30, 2016. Renee Hill represents one of nine current or former Rikers Island prison guards charged with viciously beating an inmate. Jahmal Lightfoot, the former inmate, is the star witness against the guards. Lightfoot testified that these guards mercilessly punched, kicked and stomped on him with boots that felt “like a brick.”

Of course Lightfoot is anything but a star if his rap sheet is to be credited, and Hill not too gently walked him through his criminal biography. In excruciating detail. From the armed robbery that sent him to Rikers to his long criminal history to membership in The Bloods street gang. Hill did all she could to eviscerate his character and credibility with scarcely an objection to be heard.

The strategy was summed up by another defense attorney, “in a case like this, the credibility of a witness is everything because it comes down to the proverbial your word against mine.” Prosecutors accept the burden of a damaged witness, but seek to downplay it by typically telling jurors that, “I wish I could get this testimony from a priest, a rabbi, or Mother Teresa, but sad to say they don’t have knowledge of this case. You weigh the need for the testimony with the baggage that comes with it.”

It is generally unremarkable in this criminal assault trial that the jury is exposed to the “baggage.” It would be far easier to convict prison guards if inmates were spared being confronted by their criminal past.

Toronto, March 24, 2016. Marie Henein obtains a not guilty verdict for former CBC personality Jian Ghomesi in what has been called the Canadian trial of the century (think of a minor OJ). Rather than universal acclaim for her brilliant cross-examinations and exposure of numerous lies and distortions by the three accusers, she is subjected to withering criticism.

Ghomeshi was accused of slapping and choking three women, conduct far less violent than that suffered by Lightfoot. Ghomeshi was charged with sexual assault, despite the minor detail it did not involve sex. I dissected Henein’s cross-examinations here, here and here, so I will not detail them further.

A commentator labeled Perky Pundit called Henein’s cross examination “a sophisticated version of slut shaming.” In her view, Ms. Henein had no right to demand the witness explain how she could have sent Ghomeshi “friendly, sexy emails after the alleged attack.” My favorite was a handwritten letter she sent to Ghomeshi after the alleged choking which ended with the salutation “I love your hands.”

Another bemoans that the women were further “victimized by a ruthless defense lawyer hell-bent on tearing both them and their testimony to shreds.”

Many others charged that the justice system “re-victimizes” women who come forward, calling the questioning “sick,” “gross” and a form of public “torture.” “No wonder women don’t come forward,” was a typical refrain. But what more can the law do to satisfy them?

Henein was never given the freedom to ask questions as Hall did. The legal system restricts cross examination in sex cases. The rape shield laws prevent the accused from asking a single question about the accuser’s sexual history even if it involved the defendant. Florida goes so far as to prevent a lawyer from proving the woman is a prostitute.

A sexual assault accuser receives anonymity from the media while the accused has his name and reputation slimed across the press every day. Damage that can never be repaired, no matter the verdict.

Enormous pressure is being exerted on defense lawyers to tone down cross-examination, to treat the witnesses delicately and refrain from any questions that might cause them to feel attacked, undermined or re-traumatized. Our job is being morphed from advocacy to sympathy for the women and rather than exposing embarrassing lies we are to assist the jury in understanding the trauma they have suffered.

I’d rather stay home and read “To Kill a Mockingbird.”

addendum: Tonight I came across a few more descriptions of Marie Henein: “Anti-feminist” “Unethical” “Traitor to her gender.”