February 16, 2016

A contrarian view: Ghomeshi will be convicted because his defense counsel screwed up

Mitch WolfeRebel Blogger

Contrary to my fellow Rebel Lauren Southern, I predict that former CBC broadcaster Jian Ghomeshi will be convicted on at least one charge of assault, if not more than one.

Ghomeshi's lawyer, Marie Henein is possibly one of the best defense lawyers in Canada.

But she is human. The last time I checked, she wasn't able to walk on water in her trademark five-inch heels.

Her strength is evident in her enormous self-confidence, but that is also her weakness.

I have followed her career closely over the years, and believe that her arrogance has sometimes led her astray.

I also believe she made a serious mistake in this trial, and that may lead to her client being convicted.

Henein has performed admirably, notwithstanding that her narcissistic client is on trial for four counts of sexual assault and one charge of overcoming resistance by choking, involving three women.  

The first complainant testified as to having her hair allegedly pulled back by Ghomeshi on one occasion in a car. She then alleged that on a second occasion while in Ghomeshi’s house, he pulled her hair back a second time and then punched her in the head three times.

The second complainant, who can be identified as actress Lucy DeCoutere, testified that while in Ghomeshi’s home, she was allegedly choked and then slapped three times in the face by Ghomeshi.

The third complainant alleged that while on a park bench, Ghomeshi suddenly bit her shoulder, then placed his hands around her neck making it difficult for her to breathe.

In each case, the complainant admitted that at the beginning of each encounter there was consensual kissing, so each encounter, at least initially, was sexual in nature and consensual.

However, each complainant maintained that at no time subsequent to the kissing but before the alleged assaults did any one of them consent to this hair pulling, punching, choking, punching, biting, choking or slapping.

My view is a layman’s view, but the law is based upon common sense and reasonableness.  

In order to convict Ghomeshi, the Crown has to prove beyond a reasonable doubt that Ghomeshi had both the intention to commit a sexual assault (known as the mental element, or mens rea) and that he actually committed such a sexual assault (known as the actus reus).

The role of the judge in this case is of a trier of fact. It is his job to assess the truthfulness and credibility of the witnesses and determine whether what they are saying is accurate and can be relied upon in making a determination of the facts.

I was not in the court room. I am relying solely on reports by journalists who attended this trial.

In the Crown’s closing argument, the Crown admitted that there were some inconsistencies and omissions in the testimony of  each of the three complainants. The first complainant was unclear as to whether she was wearing hair extensions when her hair was pulled in Ghomeshi’s car, and a little confused as to what car Ghomeshi was driving when one of these alleged incidents occurred.

The first complainant also neglected to mention that she's sent Ghomeshi her bikini photo subsequent to the alleged assault in Ghomeshi’s house.

The second complainant, Lucy Coutere, neglected to disclose that subsequent to allegedly being choked and slapped three times in the face, she kissed Ghomeshi good night and the next day she wrote to Ghomeshi that “you kicked my ass and that makes me want to **** your brains out”.

DeCoutere also neglected to disclose that she had spent the next day with Ghomeshi and subsequently sent him a six-page love letter.

The third complainant omitted to disclose that subsequent to the alleged choking on the park bench, they had met a second time and shared a consensual sexual encounter.

In her concluding remarks, Henein argued that the Crown has failed to introduce evidence beyond a reasonable doubt that any of these alleged incidents occurred, because all three of these complainant have faulty memories, omitted crucial facts and provided inconsistent statements which undermined their credibility.

The Crown countered that just because a complainant may be fuzzy on peripheral facts, that does not mean that their statements of facts relating to the actual incidents are untrue.

I believe that Henenin made a serious error in not having Ghomeshi testify that either none of these incidents of alleged sexual assault occurred, or -- if some such incidents did occur -- they were all consensual and had been explicitly consented to by each complainant.

Of course, there were great dangers to Ghomeshi testifying.

If he had, the Crown would have introduced as evidence Ghomeshi’s arrogant Facebook posting in which he admitted to engaging in rough sex, but only of a consensual nature. That posting and other evidence of Ghomeshi’s propensity for rough sex was not before the court.

However, if Ghomeshi had testified that none of the incidents occurred, or some of these incidents had occurred, but there had been prior explicit consent, then it would have been his word and against the words of the complainants.

If Ghomeshi was credible (and admittedly, that is a big “if”), it is my humble opinion that he would have had a better chance of being acquitted on all these counts.
Based upon what has been reported, I do not believe that Henein’s cross examinations sufficiently undermined the credibility of all the complainants and raised reasonable doubt with respect to all the incidents.

I believe that the Crown has successfully made the case that Ghomeshi has sexually assaulted at least one of the complainants if not more, beyond a reasonable doubt.

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commented 2016-02-23 09:51:46 -0500
Starting to look like smoke and mirrors trial, I wonder what is being covered up? Bet this is just the door cracked open to real story.
commented 2016-02-19 20:36:02 -0500
@mitchwolfe You are correct in that the case could’ve been stronger if Ghomeshi testified but the reason why Henein didn’t is because, although as you pointed out it does open up other windows, she didn’t need to based on the evidence in the case. The crown had no evidence, none, they were simply relying on testimony. Henein knew going in that the witnesses lied and colluded, she essentially got them to commit perjury, admit to omitting key facts and produced evidence of implied consent. Makes the trial shorter and leaves less surprises. A less astute defense would have done what you said and made the case more complicated. Having said that, it is still up to the judge, he may be convicted but the witness credibility is really low.
commented 2016-02-18 19:48:30 -0500
Liza Rosie , I agree with you 100%.
commented 2016-02-17 19:06:37 -0500
Let’s think of this. Two guys agree to punch each other in the arm, like a test of endurance or whatever, or maybe it turns them on sexually, or they find it stimulating, or funny, or who cares why? They’re cool with it. Apparently, this can get someone convicted of assault. This is frankly idiotic. The same with the BDSM stuff, which is really just “vigorous massage” if you like, and no different than these two guys who agreed to punch each other in the arm. If two people want to do that and are happy with it at the time, coming back sometime later and pressing charges over it is ridiculous. It’s one thing if someone REALLY is harmed, like breaks bones or is maimed or something like that, but something that causes momentary discomfort that is consented to and enjoyed – really is this something that is “criminal”? There is no “criminal mind” involved, and no actual harm done, and it was even ENJOYED at the time. Why the state thinks it needs to get involved is beyond me.
commented 2016-02-17 18:45:32 -0500
It seems to me that Ghomeshi probably is technically guilty of the charges, but the subsequent behaviour of all three women belies a continuing consent to rough sexual handling and puts the case well within the realm of “reasonable doubt”. What the crown needed was one witness who clearly didn’t consent, was outraged, and stayed away from their attacker. And they don’t have one.
commented 2016-02-17 16:07:55 -0500
I don’t see how consent makes it legal to assault someone. Is a punch to the side of the head or being choked not assault? Isn’t the consent issue a mute point?

I’d say that at least some of those girls have some serious problems wanting to ‘fk his brains out’ after being choked and punched, but that doesn’t change the point about Ghomeshi still being guilty of assault. I think he’s slime and if he hides behind his BDSM, in order to assault women then I hope they throw the book at him.

commented 2016-02-17 06:05:34 -0500
commented 2016-02-17 02:41:19 -0500
You gloss over a few key points: The witnesses were exchanging e-mails, and discussing their respective allegations. That is illegal. True, if there had been no collusion, the prosecution could have argued that there was a common thread running through the testimonies. But he couldn’t make that argument because the women coached each other. Indeed, sharing information between different complainants is tantamount to contempt of court. The first complainant’s emails indicate she was pursuing Ghomeshi long after the relationship was dead. She claimed to be assaulted in a car that Ghomeshi didn’t purchase until months after their relationship ended.

Yes, there are situations where women are trapped in relationships, but that wasn’t the case here. All three were free to walk away, at any time.

For all that, I feel Ghomeshi is rotter. And he should be punished. But that won’t happen because the complainants destroyed their case by withholding evidence (aka lying), and colluding between themselves. What a mess!
commented 2016-02-16 22:46:39 -0500
I do not care

He said…..

She said ……..

No matter who wins someone will be pissed off.

No matter who loses someone will be pissed off.

I am tired of it all.

I cannot get it through my head why some are allowed to be anonymous and some are not – so any more I am so frigging inundated with it on the news every day that I am tired.

What we have is a man with lose morals and a heavy hand that needs to be taken out back and spanked behind the barn with a 2×4 if all said is true.

What we have are women who seem to have been attracted to a loser and were ready to drop their pants for whatever reason – at least one of them being “he is famous and I want to fuck him”.

The “ladies” need the same treatment.

I bet all of their parents – if they are still alive are wondering where THEY went wrong.

So – find one of them guilty or find them all guilty.

In the end the lawyers made out like bandits.

And nothing else in the whole wide world is really going to change – other than there will be ten days of dissecting the final decision and we will all go back to …….

He said…………..

She said……………………
commented 2016-02-16 21:43:23 -0500
I do not believe the sex was not consensual…however I am willing to believe that Lucy would prefer her sex with less choking and battery.The fact that it is Mr Gomeshi’s preference is at this point in the evolution of Canadian law a moot point and not one in the same issue.

You can consent to sex in Canada…you CANNOT consent to be battered outside of a sanctioned MMA ring. If you forgive battery on the part of your sexual partner…do not report it to the state….because the state WILL NOT FORGIVE OR CONDONE IT….at least not to women…bashing a man’s head in with a shovel because he left the toilet seat up is OK.

I am surprised that Mr Big Ears Teddy was not subpenaed as a witness…..:-)
commented 2016-02-16 21:21:26 -0500
I don’t think that the defense lawyer “screwed up” by not putting her client on the stand. What would be the purpose? Henein successfully demolished the credibility of each of the accusers and she did this by brilliantly obtaining – by court order – the emails of the complainants which revealed that in each case the accusers were not telling the WHOLE story. Not only that – after making the complaints to police the accusers colluded with each other. The crown did not prove BEYOND A REASONABLE DOUBT that Ghomeshi committed non-consensual acts on these women. Under the circumstances it would have been reckless for Henein to put her client on the stand. If indeed Henein is “arrogant” I would say that that is a good quality for a defense lawyer to have.
commented 2016-02-16 21:09:30 -0500
You are severely off. Lucy DC and W3 are COMPLETELY discredited. The only possible standing charge is W1 getting hit/punched in the head. None of the lawyers agree with you. Clickbait.