Parallel Universes: Closing arguments at the Wayne Millard murder trial

I’ve just read some of the social media commentary on the closing arguments at the trial of Dellen Millard for the murder of his father Wayne, and I can wholeheartedly say it does not, in my opinion, reflect what happened in court today.

Lead Crown Attorney Jill Cameron did a fabulous job. It was a closing that could have been used for a jury trial. It put everything in context and clearly explained how Dellen Millard had the means, motive and opportunity to kill his father.

Throughout the trial, which I did not cover in person, I have seen a lot of misconceptions about the Crown’s case. Many people blame the Crown because the Toronto police and coroner did a terrible job. This is just silly.

The other thing people get wrong is to think that because someone is a Crown witness, they must be a kind of cheerleader for the Crown. Again, no. The Crown must work with the evidence and witnesses it has. Prosecutors can’t invent evidence, redo the police investigation, and only call perfect witnesses. The case is what it is.

There were two main points that seemed to interest Justice Maureen Forestell. The first was the financial status of Millardair and Wayne Millard. She noted that no financial records had been entered into evidence to which Cameron responded that other witnesses had provided testimonial evidence about Wayne’s and the company’s finances.

I must say that I too had wondered why no financial evidence was called but then I remembered how complicated finances can be and how much time white collar crime cases suck up trying to prove what money went where. At the Rowbotham hearing called to answer questions about Dellen Millard’s finances, the Crown in charge said its forensic accountants estimated Dellen’s assets at $2 million to (I believe) $8 million but noted that the money was difficult to trace.

The other subject area that provoked questions from the judge was what exactly she could conclude from Dellen’s lies, as Cameron called them, in his police interview. The judge asked Cameron if legally a false statement was different from silence with regard to Millard’s statement to police. Cameron responded that it was a material omission or, in other words, a lie by omission.

At this point, I was reminded of a scene from the movie Denial, where Rachel Weisz, playing the American historian Deborah Lipstadt who is being sued for libel by David Irving, rants to a friend about the bewigged British judge at her trial:

And everyone kept saying,
this is all great,
everything's gonna be fine.
And then suddenly this judge,
this unbelievable character
from Masterpiece Theatre...
Oh, I like Masterpiece
Theatre- I know.
Anyway, at the last minute,
he looked up and he said,
"Well, you know, maybe
Irving actually believes it.
"He's an anti-Semite
and he believes it.
"You can't accuse
someone of lying
"if they genuinely believe
what they're saying."
That's crazy.
That's insane.
And that's when I thought,
"I've been suckered."
I stared at this judge
for eight weeks
and I thought
I was looking at wisdom,
but maybe I was just
looking at prejudice.

Read more:

Related to the same issue, there was some more legal back and forth between Cameron and the judge later on about whether Millard’s material omissions were independent evidence of his attempt to divert suspicion. Various legal rulings on the difference between inferring guilt based on the absence of an explanation versus inferring guilt from an accused’s decision not to testify were discussed.

The Crown closed as prosecutors inevitably do, by claiming there was no reasonable doubt as to the defendant’s guilt.

Much to my trepidation, Millard’s lawyer Ravin Pillay began his arguments with reference to some, in my opinion, ridiculous law that I’ve written about before — how there’s a distinction between lies and concocted lies. And no I don’t mean falsehoods and lies, but really truly lies and concocted lies, which is as crazy as it sounds.

There have been a multitude of bad decisions as a result of this non-existent difference and I could easily see another one coming down in this case.

On a more reasonable legal note, Pillay quoted another case, whose name I did not catch, saying that if a reasonable alternative theory exists that must raise reasonable doubt. He went on to argue that suicide was a reasonable alternative theory, which, of course, is one of the questions the judge will ultimately decide.

Pillay then went on to knock down as mcsh of the Crown’s case as he could and finish with a bang. The simplest explanation is the right one, he said. “It was a suicide then and it’s a suicide now.”

Long a depressed recluse with an alcohol problem, Wayne had made a risky business decision that wasn’t panning out. Destitution loomed, said Pillay. “A life of privilege squandered on this monumental mistake, the MRO,” he continued in full closing mode.

You must acquit, he told the judge, as defence lawyers invariably do.

Justice Forestell said, depending on her workload, it’s possible but unlikely she will have a decision by July 19. At the very least she will have an update. The decision may not come down until September as a result of all the different participants’ summer vacations.

I can easily see the verdict going either way.

Laura Babcock murder trial: What does it mean to have no body?

In the run-up to the Laura Babcock murder trial, which is supposed to get underway in October, I wanted to take some time to address some of the questions and issues that crop up regularly.

One of the first things people say about this case is, “But there’s no body” to which I usually respond, “Are you one of those people bothered by the fact there’s no body?” because I’m not.

To my mind, if someone disappears, and it’s completely out of character, they’re almost certainly dead. And please be clear here, I’m not talking about the classic “he went out for milk and never came back” scenario, where someone has reasons to want to start a new life. I’m talking about people who would be extremely unlikely to voluntarily disappear based on past behaviour.

I definitely think this is the case for Laura Babcock, who was close to her friends and family, even if she was having going through a rough stage in her relationship with her parents. She was a prolific texter and used social media daily. Her friends say it was very important to her to stay in touch.

By all accounts, Laura was not the type to decamp to Vegas on her own. And when you consider that, after her disappearance in the summer of 2012, that she never again used her bank and health cards, the inescapable conclusion is that she was dead.

I will admit that I find myself quite impatient with people who can’t accept this. I do understand that that most of the time their hope comes from a good place, namely not wanting to believe the worst or that something evil has happened. But in other cases, the motivation for claims that Laura Babcock is alive is far from benign. For reasons of their own, there are people who make it a habit to be contrarian in the most obtuse possible ways.

All that said, there’s no denying it’s way harder for prosecutors to prove murder without a body since a body can provide all sorts of evidence. A big piece of the puzzle is missing when there’s no body.

The special challenges of “no body” cases are the focus of this website called — what else? — — which is run by a former prosecutor, Thomas A. (Tad) DiBiase aka the “No Body” Guy. He took a special interest in the topic when he worked on a no body case. I haven’t read the site, but I’ve heard him interviewed and found his insights very helpful. If you’re curious about how no body cases proceed, you might want to check it out.

Legally Conned

Legally conned: Canadian courts wrongly insist there’s a difference between lies and ‘concocted lies’

The Dennis Oland murder verdict was thrown out thanks to an illogical legal theory that’s been sowing confusion in Canada’s courts and undermining jury decisions for decades

It was a murder case that had Maritimers fixated. Dennis Oland, whose wealthy family founded Moosehead brewing, was accused of bludgeoning his father Richard to death in 2011. The trial, which took place in the fall of 2015, was one of New Brunswick’s longest and most expensive. Over the course of three months, 47 witnesses testified, including Oland himself, and 236 exhibits were entered into evidence. The jury deliberated for four days before finding the accused guilty of second degree murder.

Dennis Oland blood stained Jacket
This blood stained brown Hugo Boss jacket was at the centre of the controversy

“Oh no, oh no,” Dennis Oland wept aloud after he heard the verdict. “Oh God! Oh my God!”

Two months later, he was sentenced to life in prison with no chance of parole for 10 years. He served 10 months before the New Brunswick Court of Appeal overturned the jury’s verdict, ordered a new trial and released Oland on bail in October 2016. For many, the appeals court decision was vindication of what they had argued all along, that Dennis Oland was not guilty, but, for others, it simply confirmed their belief that the wealthy can get away with almost anything including murder. (If you’d like a quick backgrounder on this case, check out the Fifth Estate documentary, Murder in the Family.)

Despite the notoriety of the Oland murder, there’s been next to no public discussion about the legal issue that caused the verdict to be overturned, and which New Brunswick prosecutors have described as a “narrow and contentious point of law.” What’s more, this same issue has been causing problems across the country for decades. Oland was far from the first murder conviction to be quashed for reasons that are not just hard to understand but fundamentally make no sense.

Oland told police he wore a blue blazer

In the case of R. v. Dennis Oland, the supposedly controversial evidence involves the jacket Oland wore on July 6, 2011, the day his father was murdered at his office in Saint John. Oland told police he was wearing a navy blazer, but video from security cameras showed him dressed in a brown Hugo Boss sports jacket, and a witness also testified that he had worn a brown jacket when he visited his father on the day of the murder. Despite the fact that the jacket had already been dry cleaned when it was seized by police, it still had four small bloodstains on it, all of which were eventually tested and found to contain DNA matching Dennis’s father’s profile.

In his instructions to the jury, the trial judge, Jack Walsh, said it was up to the jurors to decide whether Oland’s testimony, in which he explained that he had forgotten what he was wearing the day before, “was an honest mistake or an ‘intentional lie’ that was related to the commission of the offence charged.”

So far, so good. That is the jury’s job. They are supposed to deal with questions of fact like whether or not witnesses are lying, while it is up to the judge to handle questions of law like what evidence to admit or exclude.

What bothered the appeals court judges was what Walsh said next, which is quoted here with the original edits of Chief Justice Ernest Drapeau, who wrote the decision. Walsh told the jury that an “intentionally false statement […] will, in some circumstances, be evidence from which it can be inferred that the [author] is attempting to mislead the police and deflect suspicion away […] because [he or she] actually committed the offence.”

Lies vs. concocted lies: is there a difference?

In non-lawyer speak, that means if the jury thinks Oland lied about which jacket he wore, they can consider his falsehood as part of the evidence of his guilt. Now, although this might seem completely non-controversial and commonsensical to non-lawyers, it provoked the appeal judges to declare a mistrial because Walsh “did not explain to the jurors that, even if they found [Oland’s] erroneous statement was a lie, it had no probative value unless they concluded, on the basis of other evidence independent of that finding, that the lie was fabricated or concocted to conceal his involvement in the murder of his father.”

At this point you’re probably going to have to stop and reread and then reread another time. After that, if you’re anything like me, you’ll have a reaction that is something along the lines of “WTF!? All lies are, by their very nature, concocted.” You will then wonder in astonishment whether this can really be the “serious error of law” over which three high court judges threw out a jury verdict from a three-month long jury trial.

Let’s deal with the latter question first. Since the seventies, courts in Canada have decided that certain types of behaviour, now labelled as “post-offence conduct,” can be, as Justice Drapeau puts it, “easily exaggerated and their occurrence misapplied, particularly by non-jurists.” Translated into regular English this means that, according to this country’s finest legal minds, regular people like the members of the jury, are gravely in danger of jumping to the conclusion that because Dennis Oland lied about his jacket, he must have killed his father. For some unspecified reason, they will likely forget all the other evidence they heard over the three months of trial and pay next to no attention to the judge’s instructions.

To remedy this hypothetically precarious state of affairs and prevent non-jurists from automatically leaping to guilty verdicts in the face of post-offence conduct evidence, Justice Drapeau noted that  “the law has developed rules that seek to safeguard against the risk of any prejudicial impact on trial fairness.” Unfortunately for Justice Walsh, he neglected to inform the Oland jury of these convoluted rules. As a result, wrote Drapeau, “his instructions on a key piece of the evidential puzzle are fundamentally flawed” to the point that the verdict must be thrown out and a new trial held.

What follows is the framework Drapeau and his colleagues, Kathleen Quigg and Margaret Larlee, maintain Walsh should have have set out for the jury. Please be warned you will likely need to read it several times:

(1) a false alibi or a lie, without more, is not evidence that can assist the prosecution in establishing guilt;

(2) a false alibi or a lie may constitute incriminating evidence if and only if, in addition to being an intentional falsehood, it was fabricated or concocted by the accused for the purpose of concealing his or her involvement or participation in the offence charged. A fabricated or concocted lie is one that is made up after giving it some thought; as such, it is distinguishable from a spontaneous unreflected or unconsidered lie;

(3) in this context, a finding of fabrication or concoction cannot be made simply because the accused lied; there must be other evidence, independent of that finding upon which the trier of fact can find fabrication or concoction; and

(4) instructions reflecting the foregoing are essential and they must be accompanied by a reference to the independent evidence from which the jury might reasonably infer fabrication or concoction.

A body of law built on a false distinction

This framework was not invented by the three judges of the New Brunswick appeal court but rather has been cobbled together by a whole bunch of judges across the country in over four decades worth of rulings that will make your head spin. Not only have  appeals court judges created a classic distinction-without-a-difference legal theory—lies versus concocted lies— they’ve also come up with guidelines for the jury on how to spot this fake distinction, and formulated exactly what type of evidence the jury can use to decide that a lie is concocted as opposed to just a regular, ostensibly non-concocted lie.

In fairness to the courts, it did not go completely unnoticed that this line of thinking had some fundamental problems. In R. v. Coutts a 1998 decision of the Ontario Court of Appeals, which Drapeau called “one of the leading cases on this subject” Justice David Doherty addressed the issue. “This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic,” he wrote. “In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.”

Yet despite acknowledging that there is logically no distinction between these two categories, in his very next sentence, Doherty, who is often described as one of the country’s top jurists, states that this non-existent distinction somehow managed to be “fully justified and, indeed, essential” as laid out in R. v. Mahoney.

In reality, Mahoney’s author, Justice John Brooke, did not provide any enlightenment on how to make this “fully justified” distinction. Rather, he quotedout of context, I would arguefrom R. v. Davison, DeRosie and MacArthur, a  passage that he believed stated this distinction exists. Then Brooke built on this to propose a brand new legal test that must be followed as a result.

This “principle,” as Doherty called it, states that before a judge can instruct a jury that a lie can be seen as evidence of possible guilt there must be “extrinsic evidence of fabrication.”

Again, if you are like me, you will ask yourself what exactly this “extrinsic evidence” (also referred to as “independent evidence” in some decisions) might comprise, given that, as Doherty has noted, “the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.” Short of a confession, what is this type of evidence supposed to look like?

This issue also stumped Chief Justice Allan McEachern of the British Columbia Court of Appeal. In R. v. Tessier, a case from 1997, he was one of five judges who  tried to clear up some of the convoluted rules being suggested. “I find it exceedingly difficult to understand how it may logically be correct that fabrication can only be proven by direct evidence, and not by inference from believed, independent evidence, yet that is what the cases seem to suggest,” McEachern wrote in his dissenting opinion in Tessier. As for the jury instructions that Brooke had objected to in R. v. Mahoney and which prompted him to come up with the extrinsic evidence requirement, McEachern wrote that the instructions had made “perfect good sense to me, and I suspect, to most jurors.”

Unfortunately good sense was missing in action as appeals court  judges kept coming up with more and more complex and confusing rules on how the jury must be instructed. Meanwhile defence lawyers were making hay with the fancy new post-offence conduct law as they enthusiastically appealed dozens of cases based on supposedly faulty jury instructions. In Tessier, like Oland, a conviction for murder was thrown out and a new trial ordered. And there were many more examples across the country.

The Supreme Court weighs in, things get worse

Unsurprisingly, in 2002, the whole boiling hot mess landed in the lap of the Supreme Court in R. v. Hibbert, a case where a real estate agent was a victim of a brutal seemingly random attack at an open house held in 1993.  While touring the garage with a male visitor, the woman was struck from behind, beaten, and strangled until she was unconscious. The jury found Hibbert guilty of attempted murder, but the B.C. appeals court quashed the conviction and ordered a new trial saying that the jury had not been properly instructed in the eyewitness identification issues that were crucial to the case. At the second trial, Hibbert was again found guilty and again appealed. His grounds were once again that the judge’s instructions on identification were improper and also the falsehood and fabrication issue that would eventually be raised in Oland.

The B.C. courts dismissed this second appeal, but it was then successfully appealed to the Supreme Court, which threw out Hibbert’s second conviction not on the identification issue but because “the trial judge’s erroneous instructions implied that the jury could find evidence of concoction allowing them to infer that the accused was guilty. This is a serious error that provided the jury with a direct route to guilt,” wrote Justice Louise Arbour. “Despite the circumstantial evidence that points to the accused, it cannot be confidently said that a conviction is a foregone conclusion in the sense that any other reasonable jury would inevitably convict.”

A third trial was ordered.

According to Arbour, the Hibbert judgment was based on “the well‑established position expressed and followed by the courts of appeal …Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.” She noted that that “the only doubt cast on [this position’s] correctness comes from a short sentence in the oral judgment of this Court in R. v. Michaud.”

Arbour, however, declined to specify what form the extrinsic/independent evidence would need to take to allow a jury to accept a false alibi as part of the evidence of guilt. She wrote, “It is unnecessary in this case to determine the nature and scope of evidence necessary to show concoction so as to permit the instructions inviting the inference of consciousness of guilt. Suffice it to say that the cases have consistently pointed out that there must be evidence linking the accused to fabrication and that such evidence cannot emerge from a mere rejection of the alibi tendered. Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.”

Fifteen years later, this lack of direction continues to plague the country’s courts. When the issue came up yet again earlier this year in R. v. Clifford, several intervenors took the chance to ask the supreme court to clarify. They included Canada’s Director of Public Prosecutions (DPP) and the Criminal Lawyers Association (CLA) of Ontario .

In its factum the, the DPP recalled that “the policy that animates the distinction between a disbelieved and a fabricated alibi is the concern that triers of fact will equate disbelief of an accused’s version with guilt and jump automatically from disbelief to guilt.” It did not, however, take any issue with this theory, which has over the years evolved into an article of faith. Nor did the DPP push back even a little bit against the lies and concocted lies distinction without a difference.

Its chief concerns were the lack of clarity as to what evidence is required to show concoction and the dangers of artificially categorizing evidence as to whether it shows disbelief or fabrication. “This is an exercise fraught with difficulties that hardly advances the ultimate goal it is intended to achieve: ensuring that a trier of fact has all probative inculpatory evidence without improperly inferring guilt from disbelief,” the DPP factum stated.

Only in Canada, you say?

It also noted that there is no similar approach taken in either the UK or Australia, and provided a citation from the UK Court of Appeal stating, “It accords with good sense that a lie told by a defendant about a material issue may show that the liar knew that if he told the truth he would be sealing his fate.”

As a solution to the problem Canadian courts have created for themselves, the DPP suggested that “instead of looking for evidence independent from the evidence that discredits the alibi, the focus should be on whether there is evidence of fabrication in addition to that discrediting the alibi. This is a distinction with a difference. (Italics in original)”

Not surprisingly the CLA was of a different mind. While acknowledging that “the essential distinction [between lies and fabricated lies] cannot be explained to jurors in a comprehensible manner,” it was more concerned about the effects of the 2002 case, R. v. O’Connor

In a half-hearted attempt to come to terms with the illogic and confusion that had arisen since R. v. Mahoney, O’Connor proposed, among other things, that juries could “consider evidence of the circumstances in which an accused made an out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement.(Italics mine)”

Muted and limited as this was, it was still an anathema to the CLA, which called O’Connor “a legal innovation, unsupported by any prior authority” while failing to mention that the same criticism could be made of Mahoney, Coutts, Hibbert, etc.

Alas for both the criminal lawyers and the prosecutors, the supreme court dismissed the Clifford appeal in February of this year. “While we appreciate the suggestions of the Intervenors that the law be re-examined, we are not satisfied that such re-examination is warranted in this case, particularly where neither party has asked us to depart from the jurisprudence of this Court,” its judgment said.

As for the Oland case, in July, the supreme court dismissed requests by both the New Brunswick Attorney General and the defence to review the overturning of Oland’s conviction. It did not agree to hear why it should grant the outright acquittal Oland wanted nor was it swayed by prosecutors’ claim that this case was an important example of how, across Canada, the job of the jury is being “usurped” by appellate courts confused about how to deal with false statements and the issue of fabrication.

In their application, New Brunswick prosecutors pointed to R. v. Corbett, a 1988 supreme court decision which stated that “the very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense.”

Dennis Oland’s new trial will likely take place in 2018.

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When is Dellen Millard’s and Mark Smich’s trial for the murder of Laura Babcock?

Dellen Millard
Dellen Millard

I am regularly asked for updates on the Laura Babcock murder trial. It is still set for this fall and looks highly unlikely to be postponed as it was already bumped from February of this year

There are pre-trial motions scheduled for August 28th. While the pre-trial motions in this and all other cases are typically subject to a publication ban, the public can attend and they are often very interesting.

And that’s really all I can tell you at this point.

Accused Murderer Mark Smich
Mark Smich 

Academic libel trial takes tragicomic turn: Part 2

Part 1 of this story can be found here

More academic secrets are revealed as a case that spent almost a decade winding its way through courts finally gets to trial

Steve Paulsson launched his libel suit in 2006, just before the two-year filing deadline. He chose Ontario as the venue because he was resident in Toronto at the time of publication of the review; the review was by way of the legal definition, published in Ontario; and it was Paulsson’s contention that his reputation suffered damages in Ontario. In 2009, the defendants, excluding Leo Cooper, successfully sought an order to suspend the suit arguing that Ontario did not meet the criteria that would it allow it to assume jurisdiction. The judge ruled in their favour, finding that there was not sufficient connection to Ontario and that, even if there were, it would not be the most convenient forum to hear the case.

In 2011, however, that decision was overruled by a three-judge appeal panel, which noted that the original motions judge had made errors of fact and failed to ask if Ontario was not a convenient forum to hear the case, was there a better one? “The record is clear that the defendants are from jurisdictions: Australia, New York, Massachusetts and Illinois,” the judgment read. “On the basis on witness availability and convenience alone, there is no other forum that is more convenient.” Paulsson’s case was back in play.

In the four years between that ruling and this trial, there were various discussions and two failed attempts at mediation took place. Now finally, in February 2015, Paulsson — or the Daawkter, as the defendants’ lawyer, Geoffrey Adair, likes to call him — is having his day, or, more accurately, two weeks in court.

Paulsson’s story is that Leo Cooper’s review painted him as anti-semite and an apologist for Poles looking to minimize their role in helping to exterminate European jews during World War II. The publication of Cooper’s review in a leading academic journal made him unhireable, he argues.

“You called her a cut and paste historian (and said) everything she believes is plagiarized from someone,” says lawyer Geoffrey Adair as he cross examines Paulsson. “Is there a more serious charge in academia?”

Adair’s position is that the review in question was legitimate criticism and, besides, Paulsson’s subsequent job-finding difficulties had nothing to do with it. The man is clearly very difficult, he sets out to show the jury time and time again. See for yourselves.

In a cross examination that lasts just a few hours (compared to Paulsson’s almost three-day-long examination in chief about which the plaintiff will later inform you himslef), Adair argues that Paulsson is quick to do unto others as he doesn’t want done unto him. He sets out to accomplish this without doing the kind of deep dive into academic disputes that might send the jury to sleep. He keeps things moving at a brisk pace, reeling off the various nasty comments Paulsson has made about his fellow scholars. Adair asks him about Havi Dreifuss, a young Israeli academic who wrote an unflattering review of Secret City in 2010.

“You called her a cut and paste historian (and said) everything she believes is plagiarized from someone.”

“I happen to believe she is not very competent,” answers Paulsson.

“Plagiarism,” says Adair pausing for effect. “Is there a more serious charge in academia?”

The jury appears unmoved and Adair shifts gears. “With negative reviews,” he says to Paulsson, “I’m going to suggest, you trashed (the reviewers) in the most heartless personal terms. You threatened to sue several of them.”

Even positive reviews never fully satisfied you, says Adair, suggesting that Paulsson always found something to pick a fight over. He quotes from an email the plaintiff sent in 2012 to University of Florida Professor Norman Goda, the organizer of a conference called “Rewriting the Jewish History of the Holocaust.” Paulsson had proposed himself as a speaker but was frustrated when he was politely turned down. “I spent 15 years researching and writing my book, put everything I had into it, and then a clique of rival authors set out to burn it — and largely succeeded,” he wrote. “The spider in the middle of web is Israel Gutman, to whom my book is enormously threatening.”

Adair places the email on his lectern. “Spider in the web,” he repeats “Why didn’t you tell me (Gutman) was at the centre of the problems?” The lawyer emphasizes that this feud began in 2003 before the Leo Cooper review had even been commissioned.

Sheepishly Paulsson confesses that by the time he wrote the 2012 email to Goda, alleging a smear campaign against him, he had grown a little paranoid. Gutman — an Israeli academic considered to be the leading expert on the Polish holocaust — had originally been a mentor of his, but things had changed after Paulsson discovered previously overlooked data and sources at the Ghetto Fighters’ House in the Western Galilee.  Until his dying day, Paulsson tells the court, Gutman was deeply embarrassed by the fact he had overlooked this treasure trove right under his nose

“He stabbed me in the back,” Paulsson says, describing a 2003 conference in Haifa, where Gutman alluded to the statistics used in Secret City, telling the audience: “We have heard some exaggerated estimates here.”

Adair wonders how Paulsson can get so riled up about having his data critiqued when he’s done the exact same thing to others. As he strides across the courtroom, he opens Secret City to page 117 and reads Paulsson’s own words: “Despite the manifest absurdity of Waldemar Schön’s figures…”

Paulsson interrupts: “Waldemar Schön was a Nazi official not a historian.”

“Oops,” I think, but, given that there are no startled gasps, I can’t tell if anyone else in the courtroom has picked up on Adair’s goof. When the defence lawyer quickly changes the subject, I wonder if he himself is even aware of his misstep or if he’s just keeping things moving as the minutes tick by before our Friday afternoon lunch break. I never do find out.

Apart from himself, Paulsson calls just one other witness during the trial, Ivor Gottschalk, a forensic accountant whose specialty is calculating loss of incomes in disputes. For this case, he was requested to project earnings based on Paulsson, who is 68 at the time of the trial, being hired on for a tenured teaching position in 2006. To estimate what his salary would have been, Gottschalk began by looking at other winners of the Orbis prize and where they were employed. He discovered an illustrious group including two Harvard professors, a senior lecturer at King’s College in London, and an associate professor of intellectual history at Yale.

Gottschalk then proposed four scenarios based on these individuals and assuming that Paulsson would have followed a similar career path had it not been for the Slavic Review. The accountant checked university and Statistics Canada research on salaries, factored in pension income based on a retirement age of 69, considered mortality tables and Canada/U.S. foreign exchange rates, and multiplied at some point by a factor of 12.56662 although my notes do not make it clear where exactly this figure came from. In the end it was determined that Paulsson could have lost more than one million dollars of income.

Adair has agreed not to dispute any of the figures in Gottschalk’s report and, as a result, his cross examination lasts mere minutes. “No disrespect to your qualifications,” he says to the accountant and expert witness, “but you have no personal knowledge of whether Dr. Paulsson would have received such a role? You’re not in a position to comment on how Orbis prize winners’ qualifications stack up against his?”

“No,” admits the witness.

“With respect to other winners of the Orbis prize, did you have any knowledge of whether they already had their tenure track positions?”


“Thank you sir, those are all my questions.”

With that, he plaintiff’s case has come to an end.

The following day, Adair makes what’s known as a non-suit motion. This is application by a defendant, usually made at the end of the plaintiff’s case, asking the judge to rule that that the plaintiff has not and cannot prove its case. In this trial, that would mean that there is no basis for the jury to rule that Paulsson has been defamed, that the words written about him by Leo Cooper were defamatory.

After hearing arguments on both sides of the issue, Justice Wilson decides that it is not unfeasible that a jury could rule in the plaintiff’s favour. The trial goes ahead as Adair calls his two witnesses – Diane Koenker, whose testimony was discussed in Part 1, and James Grossman, executive Director of the American Historical Association, PhD, University of California, Berkeley (1982). Qualified as an expert witness, he has flown up from Washington, D.C. to discuss the state of the job market for history professors.

“We were told at Berkeley that our prospects were dim at best,” he tells the court. “There are often 50, 60, 70 applicants for every job.” Grossman’s message is that — contrary to Paulsson’s claims that his book, before the bad review, guaranteed that a plum tenured job would be his — this was absolutely not the case.

Grossman puts it in terms he believes the jury will find more relatable. He asks them to consider the NHL and the NFL, noting there’s a cumulative effect. “If you don’t make it the year you’re drafted, you’re facing next year’s draft,” he explains. ‘If it goes on too long, then people tend to become less competitive.” All this is designed to drum home the point that Paulsson was still not in a tenure-track position in 2004, six years after his PhD was awarded. “Once you’ve gone beyond four years, it becomes very difficult to escape Never Never Land.”

“Any search committee is going to recognize (Holocaust studies) is a fraught field,” says expert witness James Grossman. “People argue with each other quite violently —metaphorically.”

Adair steers his witness from the general state of the job market to the specific, asking Grossman if there are “any issues with Dr. Paulsson.”

“Well, we tell students the letter of application should be one page. Anything more than two pages, the eye-rolling begins. Dr. Paulsson’s letter is four pages. The impression you get is this guy can’t speak succinctly. This is someone who goes on and on. That’s going to raise a red flag.”

Adair inquires about Paulsson’s CV, which Grossman describes variously as being “padded” and containing “a little bit of bloat.”

“Excuse me,” Dr. Paulsson says to Justice Wilson, “Can I interrupt for a second?”

No, she replies, that’s what cross examination is for.

At Adair’s request, Grossman continues to detail the flaws in Paulsson’s CV. The Fraenkel Prize, which Paulsson won for his PhD thesis, is “described in excessive detail.” Paulsson named all the conferences he’s attended as opposed to just those he’s spoken at. “Going requires requesting an application and writing a cheque. These are what I would describe as yellow flags, eyebrow raisers. You ask, ‘Is this someone who pumps themselves up, goes on at length?’”

The subject of the Cooper review is raised. Adair wants to know how it might affect Paulsson’s job prospects.

“Any search committee is going to recognize (Holocaust studies) is a fraught field,” says Grossman. “People argue with each other quite violently — metaphorically.” As for the review in question, he believes that it undermined itself, that a smart reader would see that Cooper had an axe to grind and was being unfair.

“How does an editor determine the cutoff line?” asks Adair as he brings his questioning to a close.

“You have to go pretty far to cross the bar of ‘we’re not going to publish this.’ The most important bar is what we call ad hominem,” says Grossman. “That’s the line not to cross.”

Paulsson begins his cross examination by pointing out that his PhD is from Oxford and much of his academic work is European. He wonders aloud how much Grossman knows about the non-US job market and if he is aware of the fact that Timothy Garton Ash, a well known professor of European Studies at St. Antony’s College, Oxford, doesn’t even have his doctorate.

“Your Honour,” objects Adair. “He’s here to ask questions not to give long speeches and buttress his credentials.”

Paulsson shifts tracks, taking up the issue of his cover letter with Grossman, asking if, given his background, he didn’t need to explain more than the average US-minted academic.

“Possibly,” answers Grossman, while stressing that this should have been done succinctly.

“How did you arrive at the conclusion I was combative?” asks Paulsson.

“I read your response to book reviews. One response was longer than the review.”

Paulsson then brings up an email exchange he had about the review, which he considers reasonable and subdued. “Do you stick to your opinion I was being combative?” he asks Grossman

“Yes,” he says, adding that he advises students that in general it’s not in their interest to respond to negative reviews.

Paulsson points out that he was writing in an online journal where space was not an issue. “I suggest your opinion of this matter is a bit old school,” he tells Grossman, adding that the picture he has painted of academic life is far too rosy.

The two tangle some more. Finally, the expert witness says, “What I’m suggesting is that there are many reasons you didn’t get this job. The book review is not one of them.”

Grossman’s testimony finishes just before lunch. Minutes later, as I am carrying my courthouse cafeteria meal to an empty table, Professor Paulsson flags me down and invites me to join him and his friends Amanda and Mike, who have been regular spectators at the trial and who I have met in passing. That is very kind, I say, but they have to understand that I am a journalist and that if I sit with them, I will be able to write about everything they may say. I can’t agree to keep anything off the record. It’s just too tricky in a case like this. I won’t be offended if they say no and leave me to eat alone.

Much to my surprise, everyone agrees to my terms. Amanda explains she saw a video I had recently posted to YouTube of my Scottish Terrier trying to plow through the snow and decided if I love dogs I must be trustworthy. Adorable as Bridget the Scottie is, I don’t want Amanda to be misled. “Have you read The Journalist and the Murderer by Janet Malcolm?” I ask. “It’s a book about how reporters betray their subjects. They can’t help it. It’s the nature of the job.”

Amanda looks vaguely worried as I provide some background. Malcolm tells the story of Joe McGinniss, who was given exclusive access to Jeffrey MacDonald and his defence team during his 1979 trial for murdering his wife and two children. In Fatal Vision, the bestselling true crime book that chronicled that experience, McGinniss concludes that MacDonald, the subject he had befriended and in whom he had professed his faith, was indeed guilty. MacDonald, upset by the betrayal, then sues McGinness and, later on, McGinniss sues Malcolm. The whole thing dragged on for more than a decade and was a complete clusterfuck. Even minus a murder, I have zero desire to play Joe McGinniss to Paulsson’s Jeffrey MacDonald and his affable, aging hippy friends.

Before lifting my fork, I make it crystal clear to the trio I am not overall a fan of libel suits, I worry about the chilling effects, and I especially don’t like the fact that Paulsson’s suing the University of Illinois claiming it’s the de facto publisher of the Slavic Review, because if he wins universities may stop providing infrastructure to academic journals due to fear of lawsuits. That kind of result would not be a good thing for anyone in my opinion.

Paulsson protests that the Slavic Review had no business printing the dozens of reviews it did if it couldn’t edit them properly. It should have been given more staff and more funding, he says as Amanda nods sympathetically and helps clean some spilt beef stew off his tie. A trim pretty woman in her sixties, who favours artisanal jewelry and hangs her brightly patterned woolen socks over the boots she stores in a corner of the courtroom, Amanda is skipping her annual Cuban vacation to support Paulsson at this February trial. But despite her deep loyalty to her friend, she is not blind to some of the faults Professor Grossman has just pointed out. “Less is more,” she counsels Paulsson as he prepares for the afternoon session. It’s an axiom I will hear her repeat several more times over the next few days as she warns her friend not to ramble on.

MIke and Paulsson met back in high school where they were both members of the chess club. An illustrator by profession, he’s seen friends through libel suits before. He’s dressed for court in a black and red tie-dye sweater made by his sister. It goes surprisingly well with the smart houndstooth suit was won in a raffle at the nearby Kensington market.

I ask Paulsson what he makes of Adair. “He’s got a job to do,” he shrugs. Despite everything he’s gone through on the witness stand, Paulsson doesn’t seem to take any of it personally.

Amanda reveals that the friends have been discussing Adair’s hair.

“Oh wow,” I say confessing that for the three days I’ve sat directly behind the defence lawyer I too have been completely enthralled by his silver, white locks. Not quite feathered, not quite layered with an immaculate collar line. It’s hair that has to be seen to be believed. A Google image search does it no justice, which is why I have not included a photo.

“I’m hoping (Adair’s) hair works in my favour,” says Paulsson as he strokes his grey-fringed bald skull. “Have you noticed the men on the jury all have receding hairlines? I think they’ll identify with me.”

Even in the bleakest, most boring moments of this trial — and there have been no shortage of those — the male jurors’ hair was not something I had considered. I’d wondered what the jury made of Paulsson’s long rambling speeches and his unpressed, baggy blazer, which had ceased to fit him after his doctor put him on a strict post-heart-attack fitness regimen. Or whether they might be turned off by Adair’s hail-fellow-well-met manner, if he’d been a little too mean in his cross examination of Paulsson and caused some jurors to see him as a bully. But it had never once crossed my mind that the jury’s male majority might bond with the plaintiff over male pattern baldness.

As the four-men, two women jury file back into the courtroom after lunch, I scrutinize the men’s hairlines and see that Paulsson was right. Although I have been monitoring the jurors’ reactions throughout the trial, the only thing I can definitively say about their attitudes is that one juror seems a little more amused by the proceedings than the others. Apart from that, however, they are discreet as can be and follow the rules of the court, which do not allow for rollicking fits of laughter at unintentionally hilarious testimony. The jurors consult the documentation they are given, they dutifully pay attention and sometimes some of the them take notes. I would have been happy to put my legal fate in these good citizens’ hands but as the evidence part of the trial winds up, Adair announces that he wants to strike the jury, send them home right now, and have the case decided by Justice Wilson alone.

In Part 3, to be published next week, Steve Paulsson will explain why he believes he was defamed



Academic libel trial takes tragicomic turn: Part 1

Worried about a possible defamation suit, Slavic studies professors exchange unwittingly hilarious emails about the plaintiff, which are later revealed in court

(February 2015) Diane Koenker leaves her London Review of Books tote bag on the defence counsel’s table and takes her place on the witness stand. A no-nonsense woman, whose one concession to the beauty industry is revealed by the white roots of her short brown hair, Koenker is a Soviet and modern Russia specialist and the head of the history department at the University at Illinois at Urbana Champaign. She has travelled to Toronto to testify at this defamation trial because a decade ago she was the editor of the academic journal, Slavic Review. Under her leadership, it published a highly unflattering review of the book, Secret City: The Hidden Jews of Warsaw, 1940–1945 by Gunnar S. Paulsson, PhD.

Paulsson, a Toronto resident who made a mid-life career switch from the computer business into academia, believes that the Slavic Review’s critique torpedoed his chances of ever finding a tenured teaching position and caused him to become known as a crackpot and anti-semite. As soon as he read the review in the summer of 2004, he contacted Koenker to demand a retraction, an apology, and the commissioning of a replacement review. Although she eventually conceded that the disputed book review did indeed contain sloppy errors, Koenker would not offer Paulsson anything more than the standard 250-word reply in the letters column. After much back and forth, including one false promise of resolution, Paulsson threatened a libel suit. Recognizing the seriousness of the situation, Koenker alerted the members of her editorial board. Her warning email began:

Dear Friends,
The Slavic Review Editorial Board is scheduled to meet at the Boston Meeting of the AAASS on Sunday December 5, 10:15 am to 12:15 pm in the Salon 1 meeting room. Due to financial exigencies, there will be no refreshments. There is also relatively little urgent business with the exception of a small dark cloud on the horizon concerning a book review.

Padraic Kenney, a board member who now teaches at Indiana University, realized immediately that the unnamed book causing the problems had to be the recent winner of the Orbis Prize, awarded bi-annually by the Polish Studies Association, whose book prize committee he happened to chair. He asked Koenker if there was anything he could do to mediate and they agreed it might help if he tried to calm Paulsson down. Unfortunately, their plan backfired. “It’s getting worse,” wrote Kenney ten days later. “Just got an email from Paulsson, full of invective and clear legal threats. This guy is difficult.” Given that he would be presenting Paulsson with his Polish Studies book prize right before dashing off to the Slavic Review editorial board meeting, Kenney worried about potential awkwardness. “My toughest task that morning will be, I think, to disengage from him after awarding his prize … I am confident I will be able to make it to the meeting alone, but one never knows.”

As the conference drew nearer, board members vied to outdo each other with declarations of support for academic freedom of speech and advisories about the dangers of allowing unwanted guests to attend their get-together. “Dear Padraic,” wrote one distinguished chair-holding professor, “I suggest you use your charm and persuasive powers to convince Paulsson not to crash the board meeting.” To which Kenney responded: “I will escape the PSA meeting through a trapdoor in the ceiling emerging thru a heating duct — in disguise, of course, into the SR meeting.”

Finally, in the last of the editorial board’s pre-Boston communications, Koenker emailed everyone: “I’ve heard enough to confirm my own feeling that we should not set a precedent by by turning the board meeting into a public hearing. Should Dr. Paulsson follow Padraic through the ventilator shaft, I will ask him to leave, and if he does not, (I will) have the phone number of hotel security handy to have him removed.”

Secret City: The Hidden Jews of Warsaw 1940-1945 by Gunnar S. PaulssonWhile Paulsson is not suing Koenker, his defamation lawsuit, which was eventually launched in 2006, names as defendants the Slavic Review; its publisher, the American Association for the Advancement of Slavic Studies; the University of Illinois, which hosted the journal and lessened Koenker’s teaching load so she could edit it; and the author of the book review, Leo Cooper, a 93-year-old survivor of the Warsaw Ghetto and an honorary faculty member at the University of Melbourne in Australia. Complicating matters further Cooper has declined to defend himself, meaning a default judgment against him is granted automatically. The University of Illinois and the Slavic Studies Association are represented by Geoffrey Adair, a top Toronto trial lawyer who has called Koenker to testify for the defence. The Slavic Review is not considered a legal entity.

Adair begins his questioning of Koenker, the second and last of the witnesses he calls during the trial, by eliciting biographical details designed to show the jury that she is an eminently reasonable and respectable woman. He notes in his big booming courtroom drawl that she is mentioned in Who’s Who and has just recently won the outstanding achievement award of the Association of Women in Slavic Studies. The long list of books Koenker’s edited and written includes Moscow Workers and the 1917 Revolution, Revolutions from the Russian Archives and, most recently, Club Red: Vacation, Travel and the Soviet Dream, published by Cornell University Press in 2013.

“What’s the theme of that book? What’s it all about?” asks Adair, who, throughout the trial, has cast himself in the role of interpreter to the jury of the strange and cutthroat customs of academia.

“It’s a study of Soviet vacation practices and tourism under socialism from the 1920s to the 1980s,” answers Koenker, warming to her subject matter. “There were two types of vacations. One was a health spa and the other was active tourism.”

“What does a book like that contribute for historians?” asks Adair, who could be either genuinely puzzled or faking it.

“It is trying to argue that there was a consumer society under socialism, that there was a particular set of practices and values, that it was driven by consumer demand and not just the regime.”

“I see,” says the lawyer, politely cutting his witness short and shifting topics before the jury’s attention wavers. He will spend the next hour or so skillfully guiding Koenker through a long series of questions about the operations of the Slavic Review and her handling of the dispute over the review of Paulsson’s book. Despite a bit of a bureaucratic streak, she comes across as a fair-minded and dedicated scholar who was truly worried about the dangerous precedent that would have been set had she withdrawn a negative book review.


In preparing for this trial and his cross examination of Koenker, Paulsson has studied up on courtroom technique even going so far as to read Geoffrey Adair’s book on the topic, On Trial – Advocacy Skills Law and Practice. Yet under the pressure of trial, he forgets what every casual Law and Order watcher knows: never ask a question in court if you don’t already know the answer. After meandering from subject to subject — touching upon Soviet propaganda and Dezinformatsiya, as he pronounces it with an authentic-sounding Slavic accent — Paulsson moves in for what he clearly hopes will be the killer question of his cross examination.

He asks Koenker how she would have felt if, back when she was a young, aspiring academic, a reviewer had characterized her first book as Stalinist propaganda. Although she’s paused warily before answering many of Paulsson’s previous questions, Koenker responds to this one without hesitation. Her second book, she says, almost a little bit triumphantly, “was reviewed in a very prominent literary journal, the Times literary Supplement, by a prominent historian, who accused me of inadvertently imbibing Marxist-Leninist propaganda.”

Paulsson is taken aback. “Inadvertently imbibing,” he mumbles to himself stalling for time and shuffling papers before opting to try a completely different tactic. “Diane Koenker is wearing a pink shirt,” he announces. “Is that an honest statement?” Given that the witness’s blouse is a colour I would describe as plum, I’m confused by what Paulsson’s trying to achieve, but Koenker doesn’t skip a beat. “That’s a factual statement,” she replies. “Honesty implies a value judgment.”

“Does it really?” asks Paulsson dramatically as he turns to look at the defence counsel. “Mr. Adair, is your client wearing a pink shirt?” Adair appears ready to raise an objection, but before he’s out of his chair, Madame Justice Darla Wilson, who has been extremely patient with Paulsson’s lack of familiarity with the law through a week of trial, interrupts. “Doctor,” she says firmly, “the purpose of cross examination is to ask the witness questions that are relevant to the issues and lawsuit.”

After many more such admonitions from the judge and objections from the defence, Paulsson finally winds up his cross examination back at the 2004 Boston conference. Although the Slavic Review’s editorial board affirmed the rightness of its previous position and decided to grant no concessions, both Koenker and Kenney left Boston cautiously optimistic that Paulsson might be prepared to let things drop. Kenney had gone out of his way to tell him how much he liked Secret City and that it was beneath him to get tangled up with Cooper in a petty dispute. Koenker learned that a former grad student of hers, who was interested in the Catholic church in Poland during the war, had met Paulsson at the book exhibits. “If he can establish a working relationship with Paulsson, this will also be helpful in conveying norms and ‘socializing’ him,” she wrote in a post-conference email to Kenney.

At the trial, Paulsson calls on Koenker to explain what exactly she meant by socialize, a term he finds patronizing. “I felt that he might help you understand the ways of American academia and why the response to a negative book review might be better pursued in a positive way,” she explains. Minutes later she steps down from the witness stand and is shepherded by Mr. Adair’s junior co-counsel, Jennifer King, into a taxi cab that takes her to the airport. Soon she will be back in the United States which, despite its legendary litigiousness, is a country where it is far more difficult to sue for libel than Canada or pretty much anywhere else in the world.

This trial took place in the winter of 2015. For reasons which I won’t get into yet, I am only publishing this article now, two and a half years later. 

Part 2 of this series can be found here.

Part 3 will be published next week. Follow me on Twitter @AnnB03 to receive notification

Matthew Ward-Jackson aka Iisho pleads guilty

Matthew Ward Jackson aka Iisho: This photo came from a mysterious Twitter account active for only a few days

Last Thursday (June 29th), Matthew Ward-Jackson, accused of selling guns to Dellen Millard, took a plea deal. He was the last of The Three Matthews, charged with weapons trafficking back in April 2014, to settle his case and the second to plead guilty.

It was an anti-climactic ending to the Ward-Jackson tale, which I have been following ever since I discovered that crazy bong gun photo above on Twitter just over three years ago. At the time, I found it a strange coincidence that the man accused of selling Dellen Millard the gun allegedly used to kill his father (Source: Hamilton Spectator), who had reportedly been shot in the eye (Source: Toronto Sun), would have posted such a photo on his Twitter feed, mere weeks after Wayne Millard died on November 29, 2012.

What’s more,  the Twitter account in question was only active for a period of five days in December 2012 while the photos it displayed were of a younger, pudgier Ward-Jackson, who was also less tattooed than the guy I would encounter at his various court hearings.

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