Do you know what that means? The witness, handed back by the defence, could not be rehabilitated by the prosecution. At least the prospect of doing so was so slight that it was deemed best she just get off the stand — go away, go now.
Her credibility had been demolished beyond repair. Her evidence of such jaw-dropping self-immolating proportions that it verged on farce.
We are a long way from knowing whether there was any pounding of women by Jian Ghomeshi. The case against the disgraced former CBC host is hardly in ruins after just two days of testimony. But I can attest that there was no pounding of the first accuser to swear oath against him in Courtroom 125 of Old City Hall.
Oath: A solemn promise, especially to be truthful in court.
Truthfulness was a moving target on Tuesday, until its ears were pinned back and the witness — her identity protected by a publication ban — departed the proceedings, the wreckage, with one final glare at the defendant.
The man on trial for sexual assault — four charges, three alleged victims — who so distressed this woman after allegedly punching her three times in the head that she couldn’t afterwards bear to hear his voice on radio or look at his face on TV.
Yet she sent him this email, at 3:03 in the morning, a year after the purported incident at Ghomeshi’s home: “Hello Play>boy. Good to see you again! Your show is still great. When you take a break from ploughing snow naked, take a look at (website) If you search you will find the video (friend) and I did. The song is okay — has a T.Rex flavour to it. If you want to keep in touch this is my email!!!! or (phone number)”
And this email, sent at 1:46 a.m., six months later: “Hi Jian. I’ve been watching you on Screw The Vote and I thought I’d drop you a line and say hello. Hope all is well. Say hello to (a mutual friend) for me if you see him.”
Attached to the second email was a skimpy bikini shot of herself on a beach, a picture that had been Photoshopped three hours before the send button was hit.
The witness, under direct questioning from Crown attorney Michael Callaghan on Monday — under oath — had testified she’d neither seen nor had any further contact with Ghomeshi after that night in January 2002 when, she testified, he’d yanked her hair hard (not for the first time, which had occurred a few weeks previously during a kissing session in his car), forced her to the floor and delivered three sharp blows to the side of her head.
“Are you now prepared to admit you lied under oath?” asked defence lawyer Marie Henein.
“Are you now prepared to admit that you lied under oath?’’ Henein repeated.
Witness: “I refuse.”
She didn’t remember the emails, the witness told court. Turning to Justice William Horkins, the witness importuned: “May I explain, Your Honour?”
Indeed, please explain, ma’am.
“I wanted Jian to call me so I could ask him why did he violently punch me in the head. I wanted to talk to him. The email was bait. To call me so I could get an explanation as to why he had punched me in the head.”
Bait. The word hung in the tense courtroom. Bait and switch.
In a measured tone, not badgering, not confrontational, Henein countered: “You think about that before I take it one step further.”
Emails, which the accuser hadn’t revealed to the prosecutor, hadn’t divulged to the police officers investigating her complaint — lodged 13 years after the alleged episode in Ghomeshi’s Riverdale home and weeks after his purported kinky, violent, sadomasochistic ways with women had exploded on newspaper front pages.
The bikini photo was upping the bait and blatantly flirtatious, the woman acknowledged. She was hoping Ghomeshi would bite. This woman who’d said earlier of the defendant: “I have never communicated with him. I never have, I never will.”
Callaghan, the Crown, could only bow his head, shoulders slumped. It was painful to watch, painful to hear.
“I’m going to suggest,” said Henein of the witness’s email fishing expedition, “that it is an implausible explanation — a bikini photo to the man you said traumatized you.”
Emails that reeked of star-awe and to which Ghomeshi never responded.
It was only recently, the accuser claimed, that she recalled the one-way email exchange at all. “I remember drafting emails, but I didn’t even think I sent them.” Yet her power of memory is crucial to the credibility of her evidence.
She either cannot recall or she is lying. Whichever the case, her testimony, her usefulness as a witness against Ghomeshi, has come spectacularly un-done.
In the hours Henein had this witness on the stand, methodically dismantling her testimony on cross-examination that never veered into bullying or cheap shots, the lawyer was careful to step around the most serious allegation — those punches to the head.
Henein focused on the moments before, when the witness and Ghomeshi were kissing, and the minutes after, when Ghomeshi called a cab for his guest. That was smart lawyering because, under the rules of re-direct — the prosecution’s chance to repair and recover from damaging testimony — questions are limited to areas explored on cross. Because Henein avoided the crux of the thing, Callaghan was prevented from going there. He could not turn back time.
Strike one, swing and a miss.