Ghomeshi’s Defense Counsel Screwed Up- A Contrarian Approach to the Ghomeshi Trial

Jian Gomeshi. Photo: screenshot YouTube The National

I predict that Ghomeshi will be convicted on at least one charge, if not more than one charge.

Marie Henein is an excellent lawyer. Perhaps one of the best defense lawyers in Canada. But she is human. Last time I looked she does not walk on water in her “ glamorous, vertiginous footwear, a parade of five inch heel Manolo Blahniks, Alaïas and Brian Atwoods” , (as reported by Anne Kingston in “Macleans”)

Yes, Henein is tough, determined, talented, hard- working and generally always prepared. Her strength is her self-confidence and her arrogance, but that is also her weakness.

I have followed her career closely over the years. Her arrogance has sometimes led her astray. I 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 client, Ghomeshi is a narcissistic, controlling, slime bucket- who is on trial- having been charged with 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 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, pulling of the hair, punching, or choking, or punching or biting or choking, slapping- did any one of them consent to the above 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. So my common sense and logic still lead me to the conclusion that Ghomeshi may still be convicted on at least one charge ( if not several) of sexual assault.

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 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 actual court room. I did see the complainants provide evidence in chief or respond to Henein’s cross-examination. 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 omitted to mention that she sent Ghomeshi her bikini photo, subsequent to the alleged hair pulling and being punched in Ghomeshi’s house.

Ms. Coutere omitted 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 fuck your brains out”.

DeCoutere also omitted to disclose that she had spent the next day with Ghomeshi and subsequently sent him a 6 page love letter which concluded that she thought he had nice hands.

The third complainant omitted to disclose that subsequent to the alleged choking on the park bench, they had met a subsequent time and she had given Ghomeshi a hand job.

Henein for the defense in her concluding remarks 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 are liars, lack credibility, have faulty memories and have provided inconsistent statements which undermined their credibility. And they have omitted crucial facts which also called into question the truth and accuracy of their statements.

The Crown countered that just because a complainant may be fuzzy on peripheral facts. May have been inconsistent or omitted certain facts, that does not mean that their statements of facts relating to the actual incidents of pulling of hair, punching, slapping or choking 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 prior to each incident.

Of course, there were great dangers to Ghomeshi testifying. If he had testified, 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 or that 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, then he would have had a better chance of being acquitted on all these counts.

Personally, based upon what I have read and what has been reported, I do not believe that Henein’s cross examinations sufficiently undermined the credibility of all the complainants and raised a reasonable doubt against all the complainants with respect to all the incidents.

I believe that the Crown has 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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