What does successful jury address look like?

Mountains west of the Delta

My guy (whose name has been changed to protect the innocent) was acquitted of sexual assault after trial by Jury. You can read about the result here.


But why was he acquitted?  What about the case was so weak that he did not even have to testify before the Jury?  The fact that someone said “he did it” doesn’t make it true.


Here are my jury address notes:


The starting point for all of this is that what the complainant described to you in this Courtroom simply cannot be believed.


Now, I am not going to act it out for you because I don’t have to; your common sense tells you that this could not have happened.


Her account of being shoved around from lying across the bed to lying with her head at the head of the bed by Joe, at the same time as he had his weight on her holding, to hold her down, is simply impossible.


And don’t forget that is her second version of what happened – her first version was that the she was raped while she was lying across the bed.


AND while we are on the subject of the bed, let’s not forget she cannot even remember which of the 2 beds she was raped on.


In her examination in chief, the complainant told you that this happened on the right side bed.  She told you that the right bed had sheets and a pillow.  M told you that it was the left bed that had sheets on it and the right bed was bare.  M told you that the Complainant told him that it was the right bed.  She told you in cross that it was the left bed.


You have to be certain that she is making some of this up.  She testified in chief “He managed to put a condom on and as soon as I knew it, it was over.”  She could have testified “I think he put a condom on” and it might be the truth, the whole truth and nothing but the truth – but how on earth can she say he managed to put a condom on.  That has to be pure fiction.


Because there is no condom.  How can he manage to put something on that she tells you she never sees or feels.  The only reason she thinks he is wearing a condom is because he has in the past. She is asked how she knows he managed and she says not a word about feeling a condom when he penetrates her.  So does it make sense that she would testify that he managed to put a condom on when she has no idea if there was a condom or not.  Doesn’t it sound like she is making this up?


And here is the other thing that is weird – how does he manage to just penetrate her poof?  No lubricant nothing but condom – rape – boom – no injury no torn skin – no medical evidence that she was injured any way by this assault.


The really obvious problem is that she cannot keep her story straight.  And it might be tough for anybody to remember accurately what happened a couple of years ago but her she cannot even keep her story straight the next day.


The day after these events, she writes out a statement, she is interviewed by her employer and she speaks to police.  All of this takes place within 24 hours of the alleged assault.


So in the statement she writes out herself, she says he tried to bite her cheek.  When she is interviewed by her employer, she says he actually bites her cheek.  When she talks to police she says he bites both cheeks all within hours of what took place.  This is not just a nibble; what she describes to p0lice, in her own words, is “quite hard”.  Both her employer and the police officer note that there is no sign of an injury and she says nothing about it fading.  And  is not as though it had time to fade.  She spoke to her employer’s security team that night.  No one came to court to tell you that they saw bite marks.


So within hours of what she says was a rape, she is incapable of keeping even this simple details of her story straight. You have to ask yourselves – Am I prepared to convict on the basis of her evidence alone?


And the reason you have to ask yourselves these questions is because our juries protect fundamental liberties.  Our system of justice guarantees that you or I do not get called a criminal until the Crown has proven beyond a reasonable doubt that we actually did what we are charged with doing.  It is our collective freedoms that you are protecting.  If all it takes is a woman who can simply say he raped me and then when confronted with a host of inconsistencies says “I don’t remember” without a single shred of evidence to corroborate the core of the story she is telling, all of our loved ones are potentially at risk of conviction.  Which family member do you want to see in Joe’s seat here in the Courtroom?


I should start out by thanking you for your time sitting here.  All of the rest of us here are at work, but we have dragged you away from what you would otherwise have been doing and without you our process comes to a halt.


You put up with being shuffled in and out of the courtroom while we are dealing with points of law and I’m sure it is frustrating to wonder when we will get your part of the trial back on the road.  However, the right to trial by jury would not exist if citizens did not discharge this responsibility and so in appearing in court you have helped to guarantee this right for all Canadians.


When I say “thank you” for your patience and attention I mean that very sincerely.


Second, I need to explain a couple of expressions that lawyers use.  In court, lawyers refer to each other as my friend so although Mr. Godfrey and I are colleagues “my friend”  is a courtroom term rather than a term of affection.


Also lawyers are not supposed to express our personal opinion so the proper way to advance an idea or proposition in Court is to say “I submit”.  It is gets to be a habit after years of practice.  I thought rather than leaving you wondering why I was using those maybe odd-sounding terms, I should give you a brief explanation.


Now when she explains the law to you, I expect that Her Honour will tell you, that reasonable doubt is something that can be based upon evidence or something that can be based upon a lack of evidence.  And here you lack a lot of evidence.  There is not a single whisper of a shred of evidence to support the complainant’s version of what took place – no condom – no bite marks – no DNA – not a thing.


Even this person she claims she was talking to on the phone after this took place – she could have been called as a witness to testify how upset her friend was – you heard not a word from this potentially important witness.


Her Honour is going to tell you that “maybe guilty”, “probably guilty”, “could be guilty” is not enough – you have to be sure.  Here the only thing you can be sure of is that there is a lack of anything to corroborate the complainants story.  And that lack of evidence should in my submission raise serious concerns in your minds.


There is one thing you are sure about – every single time, and I mean every single time, the complainant was confronted with an inconsistency, she resorted to the same refrain “I don’t remember”.  I cross-examined her for about an hour.  In that space of time she told you “I don’t remember” 27 times.


Her Honour I expect will also talk to you about inconsistencies and she will probably say something along these lines:


Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because s/he failed to mention something? Is there any explanation for it? Does the explanation make sense?


Here you have a host of details that she just cannot keep straight.  Some are maybe less important than others but here are some examples:


Which bed was she on when this happened?  You heard that she gives 3 different versions of that – she told the Crown in chief it was the right bed, she told me in cross-examination that it was the left. She told her employer, at the time, it was the left.  Do you not think she would remember this?


Was he treating her like crap?  She told her employer, at the time, that she thought he was calling to apologize for the way he treated her.  She told the police the same day that “he was treating her like crap.”  She tells you here in cross-examination that he was NOT treating her like crap AND that he had nothing to apologize for.  These issues are an obvious motive for her to make a false complaint to her employer, but she tells you she didn’t feel that way.  Why did that change?


Did she tell him not to come to her room?  In her evidence before you in chief, she testified “All I know is I didn’t want to talk to him.”  I asked her “Are you sure you didn’t want to talk to him?”  She replied “At the time, yeah.” This is another example of how she is not able to keep her story straight, on an important point, even on the same day.   When she is interviewed by her employer, she says that told him he could come to her room but she didn’t think he would.  When she makes her statement to police a few hours later, she tells police “I told him like not to come over”  But in the statement she wrote out in her own words, the same day, she says that she told him yes, he could come over after she showered. On the same day she says twice that she told him he could come over but she tells police she told him he couldn’t come over.


She tells you under oath that she she didn’t want to talk to him.


She tells police, at the time of these events, that she told him no.


But in her own words, written at the time of these events, she did tell him to come over.


Does that work for you?  These differences arise in the same story told on the same day.


And this is not minor because think about what flows from that.  If she actually told him he could come over, all of her testimony before you about not wanting to see him, about not knowing it was him knocking at the door; about not wanting him to come in, about him pushing his way past her into the room, about her explanation for not going to a supervisor when he just pushed his way in on her – all of that falls apart.  Her evidence before you on these issues is simply false.


And the cheek biting inconsistency is especially interesting because it not only shows that she can’t keep her story straight on the same day, within hours of the event, you got a chance to see her story on this point change repeatedly right in front of you.


In her evidence in chief she has the accused biting her cheek – it is a bite.  But as you know, she told police he bites hard on both cheeks.  So I confront her with her mistake and you saw her retreat to more memory problems. So then when I ask her to start again with her chronology about how things started she testified “he leaned over the bed and tried to bite my cheek.”  I was surprised at this turn of events so I asked her repeat what she said then I got a correction “my cheeks”.  Then when I ask “did you say tried or bit?” then it she tells us he bit both cheeks.


This is not a minor issue because it is the only other evidence of violence and it could provide some independent evidence of at least a whisper of something to support her story and but it is not there.


More importantly, it also shows you, at the time of these events and now under oath to tell the truth the whole truth and nothing but the truth, she can’t keep even this simple detail straight.


Now she tells you that while she is lying across the bed at the end of the bed and while he is using his hands to hold her down, he pulls her shorts and underwear off.  Obviously, that is simply impossible but it has been a while, maybe that is explained by normal human memory problems.


But when all of this is going on – she is lying across this single bed and her head is up against the wall – why is the accused telling her to “push up”?


When I ask her, she doesn’t recall if he pushed her up, but she agrees that there is nowhere to be pushed up to she is already against the wall.  Then I put her statement to employer to her and there is a problematic detail – She told her employer that when they were on the bed “He pushed me up.”  I ask her about that and, no surprise, she doesn’t remember what that meant.


But here is why that is such a big problem


She gives no one, not the police at the time or the crown at trial any real details about what happened.  We know basically that he takes her shorts and panties off, she grabs a blanket and puts it over her head, he pulls the blanket off and then rapes her and not much more.


So I try to get more details from her.  On the first run through her evidence, before I remind her what she told her employer about “pushing up” this is what is said:

Q Okay. And so what happens next after he gets the blanket out of the way? He puts himself on top of you?
A Correct.
Q So he wasn’t asking you to move or anything here, he’s just pushing you right down on the bed across the bed, right?
A Correct.


But then, after her words “He pushed me up” are put to her, she changes her story to have Joe shifting her position on the bed while he has his weight on her to move her from being across the bed to having her head at the top of the bed.


The next time she is asked about the blanket she says this:

Q So you’re lying with your head at the head of the bed when the blanket comes into play.
A Correct.


As for the beds – it is her own words that put her on the left bed: “Because the bed is — there’s one on the right side, bed, and there’s a bed on the left, and I was on the left bed, and he was leaning on my right side.”


Then we find out that he manages to put his condom on when her head is under the blanket and we learn that she never actually saw or felt a condom.


Inconsistencies – these are not minor inconsistencies – they go to the heart of her story and you see first hand how it changes right in front of you when she has to fill in holes – holes that arise from her own words spoken or written at the time of these events.


She swears to tell the truth the whole truth and nothing but the truth – she tells you more than once – he managed to put a condom on and he takes it off in the washroom – neither of which she actually sees.  And when she had a chance to tell you she didn’t actually know – she simply didn’t tell you the whole truth and you didn’t find out about that until she had to account for it.


Even the Facebook part she cannot get right.  She tells the Crown – Joe says don’t talk about me on Facebook and then he talks about working some overtime and then he leaves her room (after he rapes her).  When I remind her that she told police that Joe raised Facebook, when he first came in her room, that is the version that she then gives me.


And what about the bizarre conclusion of these events?  I ask her at the trial:

Q Right. And so after this happened, you’re not going anywhere for dinner, right?
A Correct.
Q Okay. And I’m assuming that you stayed in your room because you were afraid that something else might happen with Mr. Doakes, right?
A Correct.


BUT her very own words, written about what took place at the time are these:  “Then he was like talking loud, “Don’t ever talk about me or write about me,” and hit the bed where I was sitting. Then he said if I’m going to eat dinner. I said yes, and then he left. I went for supper, I brought supper to my room and then relaxed. Around 9:30 heard him knocking. I said, “Go away, I’m on the phone,” then he left.”


She told you she was in shock to explain mistakes she made in her evidence – do her own words sound to you like someone who was in shock from being raped?


Not once in her examination in chief does the complainant have memory problems.  In  cross-examination she says 27 times, each time she is confronted with a hole in her story, “I don’t remember”


I submit to you that someone who doesn’t remember that much, where there is not a scrap of evidence to support her story is not someone you can believe.


I submit to you that Mr. Doakes should be acquitted.


And he was….