One writer’s chutzpah benefits us all
Bad Seeds, Betsy Powell’s true-crime story of Toronto’s own Galloway Boys street gang, was maybe my favourite non-fiction book of 2010.
It’s such a smart read, The Wire in book form and local to boot. Powell herself is in it just enough as the narrator, but old-school news reporter that she is, never too much. It’s a gift to be able to walk that line, and she does it perfectly.
A bonus is that I know so many of the players peripherally — lawyers mostly — that all in all I found it completely great.
One of those I know in that fashion is the criminal defence lawyer David Midanik. The reader first comes across Midanik, who represented one of the gang members, an accused (and later convicted) killer, on Page 160.
Powell’s portrayal of Midanik was scrupulously fair, empathetic if not sympathetic.
She described him as a gritty, anti-establishment sort of character. She said of him, “He relished a fight.” Quoting a judge who once attributed much of the delay in bringing one high-profile case to trial to Midanik (the judge said Midanik was relentless in his efforts “to scrutinize and attack every component of the administration of justice”), Powell used the reference in the context of the admiration Midanik’s doggedness engenders in the young black men he often represents.
Powell even said Midanik was good at tennis (“a formidable opponent”); she called him a legal “heavyweight”; she showed his stubborn ferocity in court, where, for instance at the gang case preliminary hearing, he was adamant the defence should never “concede a gang even existed.”
In short, Powell was so even-handed it was stunning; all who cover the courts, as Powell did for years for the Toronto Star (she now covers politics), could take a lesson.
Once, for example, she described Midanik’s courtroom approach as exhaustive and exhausting, but added, it was apparently so even for him, which showed he had a sense of humour. “I’ve given myself a headache,” he said after being on his feet for almost four hours.
So that was how Midanik appeared in Bad Seeds — as an interesting, if occasionally irritating, balls-out defence lawyer. I found it dead-on accurate.
Two years later, when I learned he was suing her for defamation for something she’d written in the book, I couldn’t believe it. Defamation? Are you kidding me?
Here, I should disclose my own wee past with Midanik.
Once years ago, when I worked for the Globe and Mail, he sued me too, over a story I wrote about another case. The lawsuit was settled out of court, something I learned only when I walked into the main Toronto courthouse one day to be greeted by a colleague from another paper who gleefully announced it as fact. Thus, confirmed by my then-boss, did I learn the Globe had indeed settled the suit.
It is always a temptation for newspapers and publishers to settle such cases out of court: They’re time-consuming to fight, for one thing, and it’s expedient to pay the plaintiff a small amount as opposed to taking the chance you may have to pay him a big one.
I’d argue the obvious: The expedient isn’t the principled, and sometimes it’s a principle — the ability to write fairly, even if analytically or critically, about an issue or a person is surely worth guarding — that’s worth the battle.
But we the writers are usually stuck with lawyers who also represent the newspaper (our employers) or publisher. I was back then and so, effectively, was Powell, who lived with this sword hanging over her head for almost three years.
At some point, she recognized she had better get her own guy, someone whose loyalty was first to her. She got the fabulous Joe Groia, who acted for her at a reduced rate and who is a lawyer cut from unorthodox cloth. He successfully defended John Felderhof, the only person ever charged by the Ontario Securities Commission in the Bre-X gold fraud, and was later found guilty — o the horror! — of incivility in his defence of his client.
Groia brought a summary judgment motion and last fall, Ontario Superior Court Judge James Spence dismissed Midanik’s suit and awarded substantial costs.
Midanik appealed, and just last month, the Ontario Court of Appeal tinkered with the costs a little, but deemed his suit “ill-conceived.”
The words he sued over were from his own mouth about a character, Tuco, in the old spaghetti western The Good, the Bad and the Ugly, with whom he said he identified.
“Midanik told me,” Powell wrote in part, that “the loutish outlaw Tuco said in the movie, ‘I like big men because when they fall, they fall hard.’”
Midanik had claimed the words meant he — Midanik himself — was a criminal, a murderer, a rapist, a thief, etc., etc.
The motion judge and the appeal court found that no reasonable reader would take the lines to mean Midanik identified with Tuco in any other way, nor was Powell slyly suggesting otherwise. No s---, Sherlock. Late last week, Midanik wrote two cheques totalling $137,000, about $95,000 to the book publisher’s lawyers, the rest to Powell and Groia.
I imagine David Midanik is accustomed to being the guy with the biggest cojones, or the most chutzpah, in any given courtroom. This time, thanks to Powell and Groia, he wasn’t.
Responsible journalists are the better off for it.