My case against the prosecution
I’ve based this post on speaking notes I used at a news conference in Toronto on 25 May 2013. That happened to be a day then Mayor Rob Ford unexpectedly fired his chief of staff; no points for guessing what “news” most reporters covered.
But nothing should go to waste, so I’ve recycled and expanded that material here as an introduction to some of the arguments I hope to make as I blog along. The result is longer than I would normally want for a single post, but please be patient; I think it offers a good overview of the issues and my concerns—perhaps even the basis for a useful exchange of ideas over time.
…
On September 18, 2009, The Globe and Mail ran a story about the role that high-profile crisis communications firm, Navigator Ltd., might then have been playing in former Ontario Attorney General Michael Bryant’s public relations defence against serious criminal charges.
Mr. Bryant’s charges stemmed from his involvement in the death of my son, Darcy Allan, on 31 August 2009.
Reporter Joe Friesen quotes an observation from Navigator rival, Patrick Gossage: “Navigator takes a criminal lawyer’s view of public relations, that everyone deserves a robust defence.” [Emphasis added]
Gossage points to the foundation principle of our criminal justice system: every defendant deserves a defence. Every defendant has the right to a defence. Rich or poor, powerful or powerless, likeable or hateful, every defendant is entitled to a defence. In fact, a robust defence.
What is the logical corollary? Every victim deserves a robust prosecution.
Often in police, court, and forensic procedural novels, movies, and television programs someone asks, Who speaks for the victim? Who speaks for the dead?
The generally self-serving answer: We speak for the dead. We, the prosecutors, the police, the forensic investigators—even the media through a dying subset of that profession, investigative journalism —we speak for the dead.
When no one else will—especially when no one else will–we speak for the dead. Without fear or favour, judgement or prejudice, we seek and speak truth.
If we are in the media, we insist and ensure that anyone who seeks or claims the lofty role of truth-speaker does so diligently and honestly. We hold the process, the system, and its principal actors accountable. We ensure transparency and accountability.
Except, sad to say, in my son’s (and, of course, Mr. Bryant’s) case.
The victim’s side of the story does not have always to prevail. Victims can be, often are, at fault. But victims deserve a hearing. Even in death—especially in death—the system must hear the victim. The system must present, consider, and argue a case for a victim as robustly as for a defendant.
In our British common law-based system, the argument takes place in open court—in an adversarial trial that, by design and intent, seeks truth within robustly advocated and contested theories of a case.
No such argument took place on my son’s behalf. Those who chose not to engage for him in court were disingenuous enough to expect and accept praise for having worked around that problematic but foundational part of our justice system.
Police who worked the case told me they wanted to speak for my son, but could not.
Special Prosecutor Richard Peck and his Toronto agent Mark Sandler might have spoken for my dead son. They did not.
Mr. Peck and Mr. Sandler turned their backs on the only way we have to establish, or even approach, truth in our justice system. They avoided a ritual engagement that understands and accepts that neither side in a trial necessarily believes absolutely in the guilt or innocence of the defendant. Rather it assumes that in any adversarial trial, there are valid cases for and against the charges, and robust argument, with respect for the law and before a disinterested trier of fact, can generally yield acceptable outcomes that respect law and precedent. (And may even be true.)
Instead of following the logic and integrity of the adversarial system, Mr. Peck and Mr. Sandler overturned it. They agreed to a friendly, collegial—and secret—discussion (Negotiation? Mugging?) that led to wholesale adoption and public advocacy by Mr. Peck of the defence’s theory of the case.
Instead of an admittedly flawed but serviceable adversarial process—that has backup provisions for independent reconsideration and appeal—they chose an unprecedented process that is inherently open to abuse.
Mr. Peck and Mr. Sandler accepted a collaborative process that relies ultimately and solely on the integrity and disinterested objectivity of the parties involved. They shamelessly sought (and received) media and public credit and admiration for what was nothing more than an expedience; one that does not allow for independent reconsideration or appeal.
Mr. Peck and Mr. Sandler, likely with enthusiastic collaboration of Mr. Bryant and his lawyer, virtually invented a new judicial process under common law. Their process ensures neither transparency nor accountability; it deflects public examination of or access to evidence and testimony behind any agreement and any eventual decision.
Mr. Peck and Mr. Sandler opted for an approach that must have seemed to them the least inconvenient way to sweep likely personal and political consequences aside.
The fact that the Ontario government (from which Mr. Peck and Mr. Sandler were nominally independent and from which Mr. Bryant was but recently departed, with presumed intent at some point to return) was vulnerable to political consequences must inevitably have been (How shall I say it?) a consideration.
In the end, instead of mounting a robust prosecution, with inevitable political risks, Mr. Peck advocated for the defendant more robustly than the defence. And the risks went away. Or seemed to.
Mr. Peck explained his decision—unprecedented and unnecessary in law or common practice—at the final pretrial proceeding, when charges were dropped. Afterward, he distributed an “Executive Summary” that characterized evidence used in his decision as “objective and credible,” minimizing the fact that much of that evidence came from “without-prejudice” testimony from Mr. Bryant.
Without-prejudice testimony from a defendant, taken in secret, can be many things, even true. It can never objective or credible in the common understanding of those words.
The effect of Mr. Peck’s spoken and executive-summary explanation was to exonerate Mr. Bryant. He never used that word. (I now understand that he may have been prohibited in law from doing so.) But media reports, letters to editors, and commenters on line did. And still do.
I have been able to obtain and post on line some, but far from all, of the documents and information that Mr. Peck and Mr. Sandler had available for their decision. Though incomplete, the information I have suggests that the special prosecutor and his team (“the Crown” in traditional Canadian court usage) tweaked, massaged, and cherry-picked evidence and testimony effectively and exclusively to favour Mr. Bryant.
They embraced Mr. Bryant’s version of events without reservation. They rejected anything that did not support that version, even when it came from what I would call objective and credible witnesses.
They ignored a Toronto Police Service Collision Reconstruction Report that says Mr. Bryant and my son were both responsible for what happened. They insist my son alone was responsible. According to them, only my son was an aggressor.
They dismiss testimony from witnesses who were on the scene, some within a few feet of Mr. Bryant’s Saab convertible at the crosswalk near 100 Bloor Street West, where the violence began and escalated:
- testimony that suggests my son might have acted provocatively, but not aggressively; some even insisting he was not aggressive
- testimony that suggests Mr. Bryant was aggressive and that one of the witnesses called out to him to stop what he was doing, as he lurched in his car toward and into my son on his bike
- testimony that a witness began calling 911 before the final lurch, when Mr. Bryant—not his car, as implausibly stated by Mr. Peck—ran my son down, throwing him first onto the hood of the car, then onto the street
Mr. Peck and Mr. Sandler reject or ignore evidence collected by police on the scene and afterward, as noted in their memo books. Some of that evidence contradicts what became the official version of events—a version taken substantially from the defence and put on the record by Mr. Peck, with all the weight and authority of his role as special prosecutor behind it. And, of course, his personal integrity and authority, which is, ofter all, the currency that hired legal guns of his calibre have to offer.
Why did the prosecutors cross to the other side of what is appropriately an adversarial relationship? Why did they become, in fact, special defenders for Mr. Bryant, leaving no one to speak for my son?
I can’t answer that. I can only speculate.
I had hoped at least some curious media minds would attempt to answer those questions with skills, resources, experience—and energy—that I do not have. Only a tiny handful accepted my invitation, with scant success against the firewall the prosecutors erected around their actions.
The answers to my questions might confirm what the Crown has done and said; they might not. Surely, given what we now know from documents in hand, I must ask my questions: in the public interest, as well as in my own. And someone must answer them.
Justice may have been done. Or it may not.
Why do we—why must we—accept that, because Richard Peck and Mark Sandler say justice was done, it must be so? What and where is the evidence, beyond their assertion that “objective and credible” evidence exists? Why must we take their hearsay word for the existence and relevance of such evidence?
After comparing the information I now have with Mr. Peck’s explanation and summary, I believe the most important criterion—that justice should be seen to have been done—has not been met.
I accepted from the beginning that Mr. Bryant would claim self-defence. I knew my son’s history. I realized that history could justify reasonable doubt about Mr. Bryant’s guilt. I had and have no illusions about that.
Successful prosecution would have been difficult. Blaming the victim is the first line of defence in self-defence cases. When the victim can be shown to be blameworthy—in fact seemingly ordered from Central Casting to support a self-defence strategy—a defendant will usually be found not guilty.
Better a guilty defendant go free than an innocent one be wrongly convicted and punished. I expect only that due process will be followed.
What I do not expect is an opaque and unaccountable process that operates outside the open, rule-bound adversarial system that is the foundation of our justice system.
I object to a decision that was made outside due process: to a decision that seems clearly to have been made in a way that pre-empts due process.
(I remind you: the decision I object to is not to drop charges—arguable though that decision may be—but to effectively exonerate Mr. Bryant through an unprecedented process that is neither transparent nor accountable.)
I believe the process should have gone at least one step further, to a preliminary hearing. Then a judge would have ruled on the prospects for a conviction, based on the prosecution’s evidence, and such elements of the defence’s evidence as Mr. Bryant’s lawyer might have been willing to reveal at a preliminary hearing.
The result might have been the same, but the appearance of justice and due process would have been clear.
Judges make decisions within known and reviewable constraints. Transparency and accountability are designed into their role.
What we have instead is decisions made in secret
One of those lawyers, Marie Henein, acted exclusively for Mr. Bryant. No problem there: Mr. Bryant was entitled to his robust defence. He got it.
On the other side of the secret process, Mr. Peck and Mr. Sandler act for a myriad of possible interests–even the interests of Mr. Bryant and his once and future political colleagues. Which of the many interests carried most weight for the Crown? How are we to know?
The evidence and testimony cited by Mr. Peck in his explanation came almost entirely from Mr. Bryant and exculpatory witnesses and experts for the defence. The Crown used almost nothing provided by the police, except possibly some conclusions about the speed of the car as Mr. Bryant bolted from the crosswalk where the encounter began.
But it’s what happened at the crosswalk—when my son was allegedly so aggressive that Mr. Bryant feared for his and his wife’s safety—that is important, and only defence witnesses and evidence about that interaction were considered by Mr. Peck and Mr. Sandler.
Focusing on the speed of the car as it left the crosswalk is a diversion from important information:
- Mr. Bryant did not give his version of the event until almost seven months later, when he had enough information and time to construct a scenario to suit the known facts.
- Much of what Mr. Bryant said about the incident is uncorroborated, except by his wife, whose version, in turn, is corroborated only by Mr. Bryant.
- Evidence from witnesses to alleged previous acts by my son is deeply flawed with respect to identifications and facts; yet there was and still is no opportunity for anyone to question or verify what they are reported to have said.
- Testimony of witnesses on the scene has been ignored or minimized.
- None of the evidence from Mr. Bryant or his wife was sworn
- We are told some of the testimony from witnesses to alleged previous acts of violence by my son was sworn, but we do not know if any of the testimony cited by Mr. Peck was sworn.
- Dramatically contradictory evidence of at least three witnesses on the scene that night is discounted and misrepresented.
We are asked to accept a blatantly improbably proposition:
- everything said by the defendant and his supporting witnesses is unassailably true
- while everything said by witnesses that contradicts the defendant’s without-prejudice testimony is patently untrue or, at best, unlikely to stand up in court
Why must we accept this proposition? Simply because the supportive evidence agrees with Mr. Bryant’s without-prejudice version of the event and the contradictory evidence does not. There is no other way to read what Mr. Peck says on the matter.
No judge would allow, and no competent lawyer would seriously expect to succeed with, such circular argument. Yet that is the heart of what Mr. Peck and Mr. Sandler offer to justify their decision.
There are serious and inevitable questions about why and how Mr. Peck and Mr. Sandler decided effectively to exonerate Mr. Bryant.
The Crown files for the case might answer those questions, but Ontario’s Freedom of Information rules deny me access. I have appealed, so far without success.
Is that transparency and accountability? Is it justice?
Or is it politics? Is it logrolling?
I acknowledge that the Crown’s primary duty is not to represent the victim. It represents society, the community, all of us: including Mr. Bryant and, in a just world, my son.
Ideally the Crown finds a balance between conflicting expectations. That is a challenge defences do not have to meet. That sets a higher standard of integrity for prosecutors than defence lawyers, who only serve one client. Mr. Peck and Mr. Sandler fell short of the challenge.
Prosecutorial balance must recognize that my son was part of society too; that I and the rest of his family are part of society; that my son’s loyal messenger friends and colleagues—who at times were the only ones who spoke persistently and passionately for him—are part of society.
Regrettably, Mr. Peck and Mr. Sandler seem not to have accepted that. Other considerations seem to have prevailed
A reporter asked me, after Mr. Peck announced and explained the decision, if I thought justice had been done. I said then that I didn’t know what justice might have been in the situation. I still don’t.
But I know injustice, when I see it.
I have seen it in this case.
To be clear: the injustice I see is not the decision to drop charges.
The injustice I see is a problematic decision to explain that first decision in a way that exonerates Mr. Bryant. Without valid evidence. With only the word of Mr. Peck and Mr. Sandler to stand in for valid evidence.
The explanation relieves Mr. Bryant of all responsibility and accountability for what happened. In effect, it justifies what Mr. Bryant did to my son. I could accept that, if the evidence, the process, and the explanation were transparent and accountable. Because they are not, I cannot.
Again, I am not so naïve about life and my son to insist that he did not contribute to what happened. But I am equally not naïve enough to take Mr. Peck’s and Mr. Sandler’s word that Mr. Bryant did not also contribute.
The Collision Reconstruction Report concludes both my son and Mr. Bryant were responsible for my son’s death. That seems reasonable to me, given what I know about my son, the evidence in that report, and evidence from other sources.
I realize the Collision Reconstruction Report’s observations and conclusions are arguable. They are not truth or fact. They are simply evidence that would have been put before a trier of fact—probably a judge in this case, but possibly a jury—had the case gone to trial.
The observations and conclusions offered by Mr. Peck and Mr. Sandler are also arguable. At least they should be. Indeed they must be. But they are not.
In fact, they cannot be argued, hidden as they are within a convoluted procedural maze Mr. Peck and Mr. Sandler had to have known they were creating.
Mr. Peck presented his observations and conclusions as fact, in confident expectation that the media and the public would—and should—accept them as such.
Yet those observations and conclusions were never put before and accepted by a trier of fact—unless Mr. Peck, Mr. Sandler, and Mr. Bryant’s lawyer, Marie Henein, are to be accepted jointly as surrogates in that role.
To accept that proposition is to enter a rabbit hole, pass through a looking glass, into a land where everything is as we a told and nothing is as we can see. I have wandered there, without a map, for five years.
This blog is an effort to find a way back to sanity.
Perhaps even to an accounting.
28 Questions 