Gimme a ticket for an aeroplane
Ain’t got time to take a fast train
Lonely days are gone, I’m a-goin’ home
My baby, just-a wrote me a letter
– The BoxTops

 

Once in rare while we come across a piece of advocacy which seems almost perfect. This is hard to accomplish in cross examination because your “partner” is hostile and seeks to thwart you at every turn. This is especially true in a sex crimes case because they are so freighted with emotion. The accuser can be highly agitated and the cross-examininer can easily lose control. It rarely goes as scripted.

Marie Henein has proven she is a master of legal stagecraft. The best example is her handling of “the Letter.” She choreographed it. Every question had a reason. She practiced it. She workshopped it. Then she set the traps and the witness fell in every one of them. Her timing was impeccable.

This is how Henein ended the first day of cross examination of Lucy DeCoutere:

Henein: “Do you want to take a moment and tell the truth of the real conversation that was going on. Not the one you’ve been reporting to the media, not the one in the press releases, do you want to tell his honor the real conversation that was going on?”

DeCoutere: “I’m not sure what you mean.”

And then the court recessed for the day.

A classic cliffhanger. The audience was kept on the edge of their seats waiting for the reveal. No doubt the witness worried about it all night.

DeCoutere day 2:

Henein: “You told the police you didn’t really have any dealings with him afterwards, except professionally, that you didn’t engage with him, that you weren’t friends with him, that there were no romantic feelings afterwards. Those were your words.”

DeCoutere: “There were no romantic feelings afterward, I guarantee you that.”

“Do you? Under oath, you’re going to guarantee me that?”

“Oh god yes.”

The hook is set deep in the fish’s mouth.

Henein shows her a series of friendly, flirtatious, and lewd e-mails DeCoutere sent Ghomeshi asking to meet.

Henein repeats DeCoutere’s testimony, media interviews and police statement that the assault was so upsetting she can still feel his hands on her throat.

DeCoutere: “To this day.”

Henein: “And you said there was never anything romantic between you?”

DeCoutere agrees.

Henein: “I’m going to show you an e-mail you sent to him 13 days after you say this happened.”

“I think you are magic and would love to see you,” and goes on to ask Ghomeshi to hang out with her again.

Henein: “Are you prepared to admit that you have been lying about your feelings, that you have been lying about the incident? Are you prepared to admit that now?”

“Absolutely not.”

Henein puts another e-mail dated July 5, 2003 on the screen.

“The very next day, the day after you say he chokes you, read into the record the e-mail.”

“You kicked my ass last night and that makes me want to fuck your brains out. Tonight.”

To call this a bombshell would be to underestimate its impact.

Reporters note that there are audible groans in the courtroom.

DeCoutere claims the forgotten e-mail doesn’t change the fact that Ghomeshi choked and slapped her without her consent.

Henein: “It was no sexual assault. The next night you wanted to fuck his brains out.”

As if this wasn’t enough Henein hands her a surprise exhibit.

“You wrote him a love letter … is this your handwriting, Miss DeCoutere?”

“Let’s go through it line by line.”

The letter is dated July 9, 2003, only five days after the alleged assault. It is written in cursive with a blue pen.

“I loved spending time with you this weekend. I am sad we didn’t spend the night together.”

She writes that she had “a few regrets from this past weekend” that she wants to clear up. She wants to clear up some of Ghomeshi’s questions about the weekend saying she was “too chickenshit” to answer them initially.

She writes about how she felt a spark with him right away at Banff and that he was “too sparkling” and she could see his face everywhere.

At the BBQ in Banff, she saw that he was surrounded by other women and wasn’t sure that she wanted to be with someone who obviously had a string of women around him.

She writes to him saying that she came to Toronto expressly to see him.

“We hooked up for dinner and you totally knocked me out, because you were reading my mind.”

The letter then makes references to Ghomeshi’s comment about wanting to go home, lie down and hold each other as they listened to music. She writes “really, what on Earth could be better than lying with you listening to music and having peace.”

Henein then asks the witness to read the last line aloud, her sign off to the man she says choked her only days before.

“I love your hands,” she wrote.

Once again audible gasps are heard in the courtroom.

“It never happened,” Henein says of the alleged assault.

“Oh, it happened,” DeCoutere fires back.

Henein: “You never told police that “you liked his hands” did you? Or that, the next day, you “wanted to fuck him?”

There is no answer to that question. How could she write that she “loved” his hands after she claims he tried to strangle her? She actively chased him. There is no hint of fear in any of the emails or the letter. They show she was infatuated with him. Did she make up the assault because she was the scorned woman?

When she writes: “You kicked my ass last night and that makes me want to fuck your brains out. Tonight.’” it sounds to me that whatever happened between them was consensual.

Amazingly some commenters didn’t draw this logical conclusion but instead floated the claim something was wrong with Ghomeshi for saving the letter.

“Who keeps a hand written letter from an ex-girlfriend for 13 years? It’s almost as if the man was expecting to go to trial.”

The twisted lens of bias.