ANALYZING GHOMESHI
Why he won’t take stand
Jian Ghomeshi’s trial is set to conclude this week with closing submissions expected on Thursday. There has been much media coverage of the testimony of three women who accuse the disgraced broadcaster of sexually assaulting them more than a decade ago. But the defence team has indicated that the one person the court won’t hear from is Ghomeshi. The National Post’s Aileen Donnelly spoke to John Erickson, a Toronto criminal defence lawyer who specializes in sexual assault cases, about the strategy in this case and why Ghomeshi might choose not to take the stand.
Q Why would Jian Ghomeshi choose not to testify in his own defence?
A Essentially, probably on the advice of his counsel he’s decided not to testify because he and his counsel are of the view that, based on the evidence, it’s highly unlikely the court could convict.
Q Is the goal usually not to testify?
A No. It’s always the accused’s choice whether or not they testify. But in a case like this, I’d imagine that they’ve already concluded that they have raised a reasonable doubt in the Crown’s case, and so there’s no value in testifying.
Q If Ghomeshi testifies, the Crown would get to crossexamine him, would that have the potential to raise problems for the defence?
A Whatever happened, or didn’t happen, the evidence of that all rests on the word of these three complainants. And based on what has transpired in court, it would be my estimation that it’s very difficult to believe beyond a reasonable doubt that what they say happened, happened. And if the court is left with a reasonable doubt, then the court has to acquit. Remember, for all we know, nothing happened.
Q Can you talk about the standard for reasonable doubt?
A “Maybe,” is not good enough. The standard for reasonable doubt is very high. All the defence can do is raise reasonable doubt. We only have verdicts, in Canada, of guilty or not guilty (not innocent).
Q And putting Ghomeshi on the stand would give the Crown another chance to prove its case?
A Yes. I mean, for all we know, Mr. Ghomeshi may withstand cross-examination in stellar fashion, or not. We will never know, but he’s not required to add fuel to the fire.
Q Would it be accurate to say that because the defence was able to use the women’s own statements against them, there’s no need to use Ghomeshi’s word against them?
A It’s been fortunate that Mr. Ghomeshi and his defence team have been able to somehow go back and retrieve these emails, and find this evidence. It’s kind of surprising. I know (Crown prosecutor Mike Callahan) and while I wasn’t in the room when he interviewed these complainants, knowing him to be as thorough and diligent as he is, I just can’t believe that he would not have asked these complainants (about their interactions with Ghomeshi).
Q What do you think went wrong with this case?
A People put a lot of effort into this trial, and for it to crash in flames like this is just astounding. I think the blame can only be on these complainants. So I can only say that these complainants deliberately, or very recklessly, withheld this information from the Crown and police. I mean these (women) are not simpletons. They wish for their mistakes to be seen as naivety, or nobody asked me that question, well it sounds an awful lot like Bill Clinton and his problem.