Mimesis Law
19 August 2019

Bench v. Jury: The Ghomeshi Trial

Mar. 28, 2016 (Mimesis Law) — Jian Ghomeshi, a former Canadian Broadcasting Corporation journalist and host, was found not guilty of five counts of sexual assault against three women in a high profile trial that just concluded in Toronto. The interesting thing about this verdict was that is that it comes as the result of a bench trial, (meaning the verdict is made by the judge, not the jury) which is the norm in Canada for all but the most serious of criminal offenses.

This can be both a good and a bad thing. The typical rule of thumb is that if the defense theory depends on the facts of a case (say, an alibi or an eyewitness), a jury is better. If the defense turns on an interpretation of the law, a bench trial is better.

The reasoning is pretty straightforward: if an acquittal depends upon the jury believing an alibi witness, the defense only has to convince 1 out of 12 jurors to prevent a conviction. On the other hand, if the defense is making a novel or counter-intuitive argument that is nevertheless legally correct, the judge as a trained lawyer is more likely to understand and be sympathetic to such an argument.

For example, take this obscure case from Missouri, in which the defendant (ably advised by his dashing and valiant trial attorney[1]) waived a jury in order to argue to a judge that since the defendant had not behaved in a threatening manner while demanding money from a bank teller, the wording of the robbery statute meant that the defendant was not guilty of robbery but rather the lesser offense of stealing.

His brilliant appellate counsel[2] convinced the Missouri Court of Appeals to reverse the conviction, but was overruled in a split decision by the Missouri Supreme Court. That’s not an argument you can make to a jury…even folks you might assume that would be sympathetic, such as the trial counsel’s family, tended to roll their eyes at that one.

That said, the threshold matter on getting a good bench trial is getting a good judge. Meaning, one who is willing to approach the case with an open mind and, most importantly, is willing to make a tough call knowing that it might be unpopular with a sympathetic victim or with the general public.

The judge in the Ghomeshi trial, William Horkins, seems to fit that mold:

He’s generally respected by the lawyers that have argued cases beneath the glare of his bespectacled countenance. One of them, a criminal litigator named Corbin Cawkell, said that it doesn’t get much better than Horkins. He’s thoughtful, thorough and meticulous.

Now that Horkins is under what is perhaps the biggest spotlight of his career at the Ghomeshi trial, Sandler and others say such a case is in good hands from a legal perspective. “Everybody would regard him as a balanced guy with good judgment,” Sandler said.

His very well-written opinion in the case reflect those accolades. [It’s a long opinion but worth reading in full to get an understanding of the case and of the reasoning behind the verdict.] Agree or disagree, Judge Horkins did his homework. To begin with, he recognized at the outset that the case turned on a credibility call:

Each charge presented against Mr. Ghomeshi is based entirely on the evidence of the complainant. Given the nature  of  the  allegations  this  is  not unusual or surprising; however it is significant because, as a result, the judgment of this Court depends entirely on an assessment of  the credibility  and  the reliability of each complainant as a witness.

Horkins proceeds to clearly lay out the reasons that he did not find the accusers credible. With regards to the first complainant, L.R., he noted that L.R. “was unable to describe a clear sequence of events” and described the assault as taking place in a Volkswagen Beetle that Ghomeshi did not buy until seven months after the alleged incident:

In a case which turns entirely on the reliability of the evidence of the complainant, this otherwise, perhaps, innocuous error takes on greater significance. This was a central feature of her assessment of Mr. Ghomeshi as a “nice guy” and a safe date. Her description of his car was an important feature of her recollection of the first date. And yet we know that this memory is simply wrong. The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong? This demonstrably false memory weighs in the balance against the general reliability of L.R.’s evidence as a whole.

Judge Horkins goes on to consider L.R.’s post-incident conduct, such as some “flirtatious” emails she sent to Ghomeshi after the incident:

It was only after she was confronted in cross-examination with the actual emails and attachment that L.R. suddenly remembered not just attempting to contact Mr. Ghomeshi but also that it was part of a plan. She said that her emails were sent as “bait” to try to draw out Mr. Ghomeshi to contact her directly so that she could confront him with what he had done to her.

I suppose this explanation could be true, except that this spontaneous explanation of a plan to bait Mr. Ghomeshi is completely inconsistent with her earlier stance that she wanted nothing to do with him, and that she was traumatized by the mere thought of him. I am unable to satisfactorily reconcile her evidence on these points.

There’s a similar long discussion of the post- hoc conduct of the second complainant, Lucy DeCoutere, in which the judge concludes:

All of the extreme animosity expressed since going public with her complaint in 2014 stands in stark contrast to the flirtatious correspondence and interactions of 2003 and 2004, words and actions that are preserved in the emails and photographs she says she forgot about.

Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information. (Emphasis added.)

And the same with the third complainant, S.D.:

[ S.D.]says that she inadvertently heard something on the radio about emails being presented to the other complainants. She realized at that point that everything was going to come out and that it was time to disclose the true extent of their relationship.

S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navigate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.

Judge Horkins went on to find Ghomeshi not guilty. He did his job, in that he weighed the accusers’ credibility and found them wanting. He made the right decision.

[1] Me.

[2] Not me.

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