Amid a vigorous cross-examination that shredded elements of the first Jian Ghomeshi accuser’s story, defence counsel Marie Henein never probed one key allegation: That the former CBC host punched the woman three times.
Tough questions were asked about flirtatious emails and a personal bikini photo she sent Ghomeshi after the alleged assault. There were questions about whether she was “thrown” or “pulled” to the floor in Ghomeshi’s Riverdale home in 2003. But Henein stayed away from the alleged beating.
The Toronto Star asked John Rosen, a veteran of hundreds of cross-examinations in his 46-year career as a criminal lawyer. The complainant described the beating when the Crown asked her on day one, but Henein never once raised the issue.
“I would never have a witness repeat how many times she was hit, how hard. Never,” said Rosen. He is not involved in the case but said what happened in court Tuesday was a classic defence lawyer tactic. Don’t let a witness repeat a serious allegation.
Instead, Rosen said Henein was right to eat away at the witness’s credibility, searching, with the help of her defence team, for inconsistencies. “All (Henein) has to do is show the woman is not believable. All you have to do is fracture her story, and fracture it enough to hurt her credibility.
While the defence raised issues with inconsistencies, such as whether the woman and Ghomeshi were kissing at a certain point during an alleged assault, the woman’s story of the three punches is relatively consistent, whether she told police or the media.
On day one of testimony, the woman told Justice William B. Horkins that the assault occurred at Ghomeshi’s home in early January 2003 and that it was sudden and violent and left her traumatized. She said that a visit to his home that started out with her showing Ghomeshi “kooky yoga moves” ended up with her leaving in a taxi and feeling thrown out “like trash.”
At one point, the woman repeated the beating allegation of her own volition, explaining why she sent Ghomeshi a flirty email a year after the alleged attack, and a bikini photo six months after that. Those attempts to contact Ghomeshi were “bait,” she said. “I wanted Jian to call me so I could ask him why he violently punched me in the head.”
Henein did not interrupt the woman. But she let the comment pass and moved on.
Criminal lawyer Rosen said there was simply no reason for Henein to ask questions about the alleged punches.
The punching allegation by the woman was Monday’s bombshell, but Tuesday it was Henein’s turn. In a scene that could have been out of Law and Order or Boston Legal, Henein laid what appeared to watchers in the courtroom to be a trap.
She asked the witness if, after the alleged assaults, she had had anything more to do with Ghomeshi. She said no. Henein remarked that on six occasions she told police detectives she’d had nothing more to do with him. Henein also noted that the woman told court that when she saw him on TV or heard him on radio, she flipped the off switch. So traumatized was she, the woman said, that she did not even listen to the “new guy” on Q. Henein cautioned her several times. Is there anything you want to tell me?
Then the bombshell.
Displayed for all to see on the jumbo court screen was an email. In a Hollywood flourish, Henein’s associate showed one line of it at a time. Two emails, the first addressed to “Play>boy” (his show was called >play in those days) and began, “Good to see you again!” It invited him to watch her on a music video “when you take a break from ploughing snow naked.” That email was sent Jan. 16, 2004, shortly after 3 a.m. She ends by inviting him to keep in touch. The second, sent June 22, 2004, at 1:46 a.m., says the woman has been watching Ghomeshi on a television show. A photo was attached to the second video. Court heard the photo, which is subject to a sealing order pending a media challenge, is a picture of the woman in a bikini on the Toronto islands.
Presented with these emails and the photo, the woman said she was baiting Ghomeshi, hoping he would call so she could confront him. He never called, she told court.
Henein did not link the sending of the photo and emails to the alleged assault. She used their existence to raise a credibility issue with the witness.
When Henein said she had no more questions, Crown attorney Michael Callaghan did not take the offer of a “re-direct” — asking questions about issues raised in the cross examination.
Rosen explained that Callaghan’s hands were somewhat tied at that point. Under the rules, he could not ask her to retell her story of the alleged punching incident, because Henein did not raise it. Possibly — and Rosen made it clear he is speculating — the Crown attorney simply decided enough was enough.
The rules prohibit a witness from speaking with anyone while they are on the stand and under oath.
“You don’t know what a witness is going to say after being bounced around in cross-examination.”