Articles

HIS CLIENTS NEVER HANG

Even after a man is sentenced to death his case is not hopeless as long as Arthur Martin, a cherubic QC who never tears his hair, is available to defend him. To date he has argued courteously and successfully for the lives of twenty-five clients

MAX ROSENFELD July 1 1953
Articles

HIS CLIENTS NEVER HANG

Even after a man is sentenced to death his case is not hopeless as long as Arthur Martin, a cherubic QC who never tears his hair, is available to defend him. To date he has argued courteously and successfully for the lives of twenty-five clients

MAX ROSENFELD July 1 1953

HIS CLIENTS NEVER HANG

Even after a man is sentenced to death his case is not hopeless as long as Arthur Martin, a cherubic QC who never tears his hair, is available to defend him. To date he has argued courteously and successfully for the lives of twenty-five clients

MAX ROSENFELD

ARTHUR MARTIN’S clients were being hustled off to the penitentiary with such alarming regularity and for such long terms that, as he ended his first year of law practice, he was almost ready to accept the comforting advice of older lawyers that criminal law was “not quite respectable” anyway, and that a gold-medal graduate should find a nice safe niche untangling the affairs of corporations.

Today, fifteen years later, hundreds of Canadians charged with crimes ranging from murder to motor theft have the best of reasons for being grateful to Martin for disregarding that advice: His courtroom record now stands at ninety percent cases won.

Most remarkable of all, he has defended twent.yfive persons charged with murder and has yet to have a client hanged. But even these statistics don’t tell the full story. More than half of Martin’s cases come to him from other lawyers who consider them too difficult: to handle. Frequently he enters a case only after the person charged has been convicted. A fellow criminal lawyer, Arthur Maloney, recently commented: “In many of Martin’s cases none of us would have given two pins for his chances, or any other lawyer’s.”

Last year Martin handled seven murder appeals. He got two sentences quashed and five new trials; the heaviest final sentence was eight years’ imprisonment. Appealing convictions on lesser charges, he last year won twenty-eight out of his thirty-four cases, either getting a new trial or the conviction quashed.

G. Arthur Martin, QC, of Toronto, looks less like a great criminal lawyer than a conservative businessman. He is burly, medium in height; his face is big and heavy-jowled and his hair is thinning. He is thirty-nine but looks older. For a man who addresses more juries than any other criminal lawyer in Canada, this unspectacular appearance serves his courtroom tactics so well that he might have planned it that way.

In the notorious Dick case at Hamilton, Ont., in 1946, at least two other lawyers became nationally known through their defense of Evelyn Dick and her father, Donald Maclean, even though their clients were sentenced to life and five years respectively. Martin is scarcely remembered in connection with the case, although his client, William Bohozuk, also charged with murdering Mrs. Dick’s husband and her baby, was acquitted.

Martin’s self-effacement was deliberate. He eluded reporters and when they caught up with him he was politely close-mouthed. Some celebrities work on the theory that it is good publicity to seem to shun publicity. Martin’s avoidance of the spotlight springs only in part from his own reticent nature. It is also a calculated part of his technique.

When Martin enters a courtroom he wants no one on the jury to recognize him as a famous counsel specially brought in for the case; he wants the jury to sit back relaxed and listen to what this unknown lawyer has to say.

He never seems to put up a vigorous fight for his client. He has no papers or law books on the table before him; and while everyone else connected with the trial is busy making notes and conferring with witnesses, he sits there calmly with his hands folded in front of him. In the Dick case he had to interrupt and object many times but not once did he employ that dramatic legal cliché: “I object!” Instead he rose with dignity and looked at the judge questioningly; then he turned to the prosecutor and slowly said, “Please . . .” in a way which to all ears meant, “now you should know better than that . . .” Later he explained that repeatedly shouting “I object!” might make a jury wonder what a lawyer is trying to conceal.

He looks more sober than the judge as he listens to the case unfold and nothing seems to ruffle him. Things looked black for Bohozuk when Evelyn Dick claimed that not only was he the father of her child, but that he had killed the child and later brought the body to her home encased in cement.

During the murmur and rustle in court which followed that statement, Martin looked calmer than ever, as though wondering, “What’s all the commotion about?” His confidence was reflected in Bohozuk’s acquittal.

Martin explains that he doesn’t want to be admired as a brilliant last-ditch defender; he prefers the jury to get the impression that the case is so simple as to be a routine task for any lawyer. He can back up this attitude with an experience, too. Once a Vancouver man facing a serious narcotics charge tried the “great mouthpiece” act by sending to Toronto for Martin to defend him. Not only did the client have to pay a substantial fee and all Martin’s expenses, but he had to pay the fifteenhundred-dollar charge of the Law Society of British Columbia to have Martin admitted to the bar of the province. Martin lost that case.

When Martin operates under his own preferred state of semi-anonymity, crown witnesses often forget which side he represents. They tend to think of him as a helpful guide in the maze of trial proceedings.

The witnesses for whom Martin reserves the greatest courtesy and respect are the scientists who give expert: testimony. Since many of his cases involve insanity the kind of scientists he most frequently meets in court are psychiatrists.

Psychiatrists were prominent in the Gibbons case, of March 1947.

John Gibbons, who admitted having shot two neighboring farmers near Ottawa, had pleaded insanity. He said his neighbors planned to ruin him and finally kill him; when he met them on the road one day he said he thought they were going to pounce on him so he killed them in self-defense. The crown’s contention was the men were killed as a result of a quarrel over the right of way on that road. When Martin came into the case John Gibbons had already been found guilty of murder and sentenced to death. His two lawyers had appealed the verdict and won a new trial. But they felt they had done all they could and so called on Martin.

In the second trial the facts were the same, the witnesses were the same and the jury was again made up of district farmers. The psychiatrists were the same and still held to the same opinions. One eminent psychiatrist testified: “I do not believe truthfully I could go further than to say he was in an emotionally disturbed state of mind. It is my opinion that Gibbons realized it was legally wrong to shoot the men.”

At this point Martin rose to crossexamine. Knowing that scientists usually feel out of their element on the stand, he approached the witness with deference.

“I’m sorry to detain you, doctor.

I shall try to be brief. Tell us, please, did you find evidence that Gibbons consistently misinterpreted his neighbors’ intentions?” “Yes.”

“A man who does this consistently is mentally ill?”

“No, he is in poor mental health. There is a difference.”

“The existence of a fear that has no foundation in fact is a false belief?” “Yes.”

“And retaining that fear after being assured of its nonexistence is a delusion, is it not?” “Yes.” “And that is one of the symptoms of insanity?” “Yes.”

“Gibbons’ statement that he was in a trap was a false belief and a delusion?” “Yes.”

“Isn’t the existence of delusions one of the hallmarks of insanity?” “Yes.”

Without unpleasantness, without any show of conflict or tension, Martin had made the star wit-

ness for the prosecution star witness for the defense. The jury took just twenty minutes to find the accused “not guilty by reason of insanity.” On hearing the verdict John Gibbons, just declared insane, jumped to his feet in the prisoner’s box and said to the jury: “I thank you for a very intelligent

decision.”

Martin’s lack of histrionics does not mean that he is not an actor. It simply means that he believes in the modern technique of underplaying a role. Modern juries, he says, have been exposed to crime trials in movies and magazines and therefore require a different approach. The best proof of his abilities is that even his unspectacular cases usually attract a “full house” of lawyers and law students. The latter consider “catching a Martin case” an important part of their legal education under Mart in, who is also a professor of criminal law at Osgoode Hall, the professional law school in Toronto, where he started to lecture only three years after his own graduation.

Martin starts a quiet campaign to win the jury’s favor the minute the trial opens. While the prosecutor is out lining his case, Martin faces the jury and slowly rocks himself on the back legs of his chair, wearing an expression which says, “This is all very well but just wait until you hear our side of the story.” Throughout the trial he misses no opportunity to be eloquent without uttering a word.

Great criminal lawyers are usually portrayed appealing to the jury’s emotions but Martin claims emotion rarely wins a case. “It only clutters up a good case,” he says, “and in a poor one it is well to remember that tears dry quickly. Facts are all that really count in the end, especially with juries in English-speaking Canada; if jurors haven’t at least a few facts to cogitate when they are by themselves, they may feel deep sympathy and it may hurt to do it but they will convict. Only as a last resort is an emotional appeal advisable and even then it is useless without at least one fact.”

There are, of course, occasions on which Martin has to rely solely on facts — facts presented in the “Martin manner.” Some of his most spectacular successes have been before the Court of Appeal or the Supreme Court of Canada, where there are no juries and where impassioned speeches would be wasted on the learned and unemotional judges.

But before juries Martin has occasionally used the “dramatic” technique when the evidence supplies the essential anchor of fact. He did this in April 1950 when two Royal Canadian Mounted Police constables, posing as dope addicts, called at a doctor’s office in an Ontario city to purchase narcotics with marked bills. Shortly after they left, two other RCMP officers arrived and arrested the doctor. They searched him and found the marked bills as well as an opened vial allegedly containing the balance of the narcotic sold. The first pair claimed to have made similar purchases from him on two previous occasions.

No one knew better than this lawyer that in a non-jury court the prospects of an acquittal did not look bright. He kept going over and over all the data, doggedly looking for a defense against what some lawyers might have regarded as an airtight case, and suddenly he was struck by a statement in the account given by the police themselves: the first time the doctor was approached for narcotics he refused to sell. The purchases were supposed to have been made on the three subsequent visits. He asked for a jury trial. “Juries, unlike judges,” he says, “introduce a necessary humanity into the law which might otherwise be lost.”

He brought each constable to the witness stand and began by asking his name. It was here that Martin used the emotional approach. When he replied the defense counsel became visibly outraged and exclaimed, “So the name you gave the doctor was false?” Astonished, each constable had to admit having given a false name. Where do you live? Then you lied when you told the doctor you live in Montreal? What is your line of work? Then you lied when you said you were an interior decorator? Martin stretched out the crossexamination and kept angrily hammering at them, you lied, you lied, you lied . . .

Finally he asked with contempt, “Since to carry out your plan you told so many lies how can we be certain you did not go a step or a lie further and lie about the evidence?”

The prosecutor pointed out to the jury that the method used in this case was the only one that can be used to get dope peddlers; addicts and other peddlers cannot be used in evidence and so evidence of “high calibre men” like the RCMP must be used.

Martin came over to the jury with anger etched on his face. “You have been listening to one of the most damnable plots to ensnare a man into a criminal offense that has ever been used in this country,” he declared. He pointed at the Mounties and recalled that according to their own testimony the doctor had at first refused to sell drugs, but that their superior had sent them back with an even bigger roll of money. “Does that strike you as the proper activity for police officers? Their job is to detect crime, not to incite it.”

The jury was split in its verdict. A second trial jury split again, but eight were for acquittal. Martin went

through a third trial, blasting the methods of the RCMP, an almost sacred Canadian institution, and finally the jury was unanimous for an acquittal.

Martin and the police respect each other, however. In 1943 he gave a course at the Ontario Police Training School on a subject on which he has decided opinions: How police should

conduct themselves with defense lawyers. Occasionally, too, police join the long line of people seeking Martin’s help when charged with criminal offenses. Recently he defended a constable charged with manslaughter after a fourteen-year-old boy was fatally shot in a chase. He succeeded in having the charge dismissed.

Martin’s success is not based on careful selection of his cases. John Orde, member of a Toronto legal firm, who as a student of Martin’s followed the latter’s courtroom appearances with interest, says, “He never picks hiscases. He operates just like a cabbie, taking on all fares.”

But Martin makes one invariable rule: “I will defend anyone only once,” he says. This policy was instituted to

avoid becoming a mouthpiece to the underworld. Professional criminals among his clients are therefore negligible, never more than two percent. The great majority of those he defends are the kind of people who get into serious trouble once but aren’t likely to repeat the experience.

Arthur Martin sums up the secret of his success in one word: Preparation. He is one of the few lawyers in Canada who gives his entire time and energy exclusively to criminal law. He has refused high office in legal organizations; he has refused civil cases involving as much as a million dollars, which would have taken only a few weeks of office routine. A bachelor, his home is mainly in his office, where he works day and night, Saturdays, Sundays and holidays. He has never taken a vacation. The only time he has spent away from his work is the occasional afternoon or week end in the summer when the courts are in recess. He refuses to own a car, using taxis in order to have one thing less to take his mind away from criminal law.

One of Martin’s most effective devices is a final address to the jury without notes, without a scrap of paper in his hands. The secret behind not taking notes throughout the trial and being able to do without them for his jury address is his remarkable memory. After as long as three weeks on a case he remembers every detail, including street names, dates and technical information. With nothing to interrupt the smooth flow of his speech he never takes longer than forty-five minutes, saving the jury from fatigue and annoyance. Without notes he looks like a smalltown hardware merchant giving family advice, not a sharp lawyer intent only on winning his case.

His feats of memory are legendary among Ontario lawyers and law students. One performance in particular is obviously suited for the stage: Given the name of any case in one hundred and four volumes of Canadian Criminal Cases he will respond with the facts of

the case together with the exact volume and page numbers; the same with thirty-five volumes of the English Criminal Appeal Reports. The act works in reverse: Given the facts of

any case, he will supply the name and a few related cases as well. But outside of criminal law he has difficulty remembering a simple telephone number.

Martin himself sums up his jury technique simply: “I try to be the

thirteenth juror,” he says. In the course of addressing the jury he invariably explains in a simple little lecture one of the main laws favorable to the accused —how it originated and developed. “This is to show it is not just an arbitrary rule but evolved for the protection of us all.”

No jury addressed by Martin ever fails to hear these words: “We presume that a man is innocent until proven guilty; extending the accused the benefit of a reasonable doubt is not charity but the law.” To anyone puzzled by the tireless repetition of this elementary rule of British justice he says: “How-,

else can 1 be certain that every last juror knows it?”

His method of choosing a jury from the jury panel is an important factor in his plan of defense. Although the defense counsel is limited in the number of jurors he may challenge, Martin tries to clear out the entire managerial class. “They are too self-assured and opinionated for this duty,” he says. He rejects anyone too far above or below the social and economic status of the accused. “An industrialist should not judge a clerk charged with burglary, nor a clerk decide on an industrialist charged with embezzlement.” The best juror, from his point of view, is a manual worker past middle age. “This type has been nearer the hard facts of life. He knows how circumstances may push a man and he can imagine himself in the accused’s predicament.”

But this is as far as he goes with fixed rules for picking juries. An early experience taught him not to try to reduce it to a formula. He had snapped up a septuagenarian for one of his juries because a book on courtroom technique advised favoring old men, on the theory they are more mellow and tolerant. When the jury was still out after five hours the young barrister was worried sick, but at least thankful the old codger was in there holding out for him. When the jury returned and the verdict was “not guilty” he sighed with relief and looked gratefully at the old man. On the way out of court one juryman told him they were ready to bring in this verdict within thirty minutes but it took all those hours to persuade the old man against conviction. Martin dropped the book into the nearest wastebasket.

Martin takes it as no compliment when someone comments that a client was certainly dripping with guilt and has only Martin to thank for getting him off. “By the time I have investigated a case,” he declares, “and go into court I am always convinced of my client’s innocence.” Defining the proper function of a criminal lawyer to his class, he once said, “Fighting the crown every inch of the way a lawyer is not only protecting his client but upholding a great principle of justice—still not enjoyed by over half the world’s people —and thereby protecting the liberty of all free men.”

During the war Martin defended a Nazi. He was hired by the Swiss Consul to represent Eckhart Brosig, a sergeant in the German Air Force accused of robbing a mail truck in the course of escaping from a prisoner-of-war camp. The case aroused international interest because it was a test case to determine to what extent prisoners of war are subject to civil law. Martin succeeded in having the charge dismissed. He had put so much earnest effort into the defense that the accused became convinced Martin was a Nazi sympathizer. He began saluting him with Heil Hitler! It took a lot of explaining to get across to him that in this country a good defense is not to be confused with personal—or political—sympathy for Ehe defendant.

The word “guilt” has practically been wiped out of Martin’s vocabulary. “We still know so little about what makes human beings tick, “he says, “that no one but God in His infinite wisdom is justified in using the word freely.” Martin’s sincerity is widely recognized by his colleagues. Recently Dr. Cecil Wright, dean of the University of Toronto law school, said: “Arthur

Martin, by his teaching and example, has given Canada the highest concept of the criminal advocate.”

There were no profound or inspirational reasons behind Martin’s choice ^of law as a profession. His father, a ^lumber merchant, thought the boy should have the security of a profession and lawyers seemed pretty solid to him; to Arthur Martin the only early attraction of law was that it would bring him into contact with a wide variety of people. One of his enjoyments today is to sit in the lobby of a big hotel for an evening and just watch the people go by.

At the University of Toronto it wasn’t long before they typed him a mediocre student. Both in Huntsville, where he was brought up until the age of thirteen, and later at Oakwood Collegiate Institute in Toronto he had been indifferent to study. Sports and fun of all kinds were his main interests, to the point of presenting a truancy problem.

A Start With Burglary

At University Martin remained an indifferent student until third year of the course, at which time the Dean of Law himself taught a few subjects. Dean W. P. Kennedy’s own passion for the law was imparted in enthusiastic, colorful and entertaining lectures; many students remember them as the highlight of the course. Martin found that he was not skipping any of the dean’s lectures, and discovered it was because he was having fun. Thereupon he took to the study of law with all the vigor he had put into his other pleasures and that year created a sensation by heading the class. He began writing articles for the law journals and one, Dying Declarations, is quoted in the latest edition of Kenny’s Outlines of Criminal Law, an important legal textbook. In his fourth year his classmates elected him president of the University Law Society. He again headed the class, graduating with as many scholarships as one student could possibly get, plus the gold medal.

At Osgoode Hall, the professional law school in Ontario, he won first place and scholarships in all three years and the gold medal on being called to the bar. He decided to specialize in criminal law. But the legal firm to which he was articled concentrated on commercial law. Anxious to keep the gold medalist in the office, his employers gave him permission to place his name on the list of lawyers available to defend persons who could not afford a fee.

He was first given a number of burglary cases and it was most of these unhappy clients who, in his own words, “went to the penitentiary for long term with alarming speed.”

But a few established criminal lawyers recogfnzed the sound grasp of criminal law behind Martin’s courtroom inexperience, and enlisted him to prepare the legal background of their own cases. That led to his first big break: the Windsor murder case.

One day in 1939 four men entered the North Toronto home of James Windsor, a small-time bookie, while he was at dinner with his family and friends. He was shot dead and robbed. Donald “Mickey” McDonald, a notorious underworld figure, was arrested and charged with the murder. The general public feeling was, “at last he’s behind bars again and if this crime is proved against him we’ll be rid of him permanently.” It was known that the crown spared no resources preparing its case. The trial was to be the long awaited showdown with Mickey McDonald. Frank Regan, then a leading Toronto criminal lawyer, appeared for the defense. Beside him was Arthur Martin. Regan had a reputation for his courtroom strategy; • the younger man was there for points of law.

On the opening day of the trial five witnesses in succession stood up, pointed at the accused and said, “This is the man.” One woman, the murder victim’s sister, said: “I would never

forget that face.” The defense countered that the same five witnesses had not been able to indicate the guilty person three months earlier when shortly after his arrest McDonald was placed in a police line-up. At that time Windsor’s sister said “he looked like the man” and asked to see his teeth because, she said, the man who shot her brother had badly decayed teeth. McDonald showed perfect white teeth. She then said he was not the man.

The crown produced a witness, John Shea, who was himself awaiting trial for bank robbery; the gun that fired the bullet which killed Jimmie Windsor had been found in his possession. His explanation was that Mickey McDonald used his apartment to store his guns and the night of the murder McDonald came to get one, returning with it an hour later and saying he had just killed a man. Regan ridiculed the idea of believing anything said by Shea on the ground that he was obviously giving this testimony in the hope of a more lenient sentence for his own crime.

Almost as difficult to combat as any direct evidence, however, was the open knowledge of Mickey’s record and connections, which the prosecutor made a point of keeping in the forefront. Despite a hard-fought defense, the verdict of guilty came as a surprise to few. The prisoner was sentenced to death.

The usual appeal was launched, but Regan confined himself to juries and had no intention of going to the higher court himself. He approached a few counsel for the task, but they declined. Better let Arthur Martin handle it, especially as he was already familiar with the case, they suggested.

That was the moment all understudies dream about. In the Ontario Court of Appeal Arthur Martin attacked chiefly the shaky identification evidence. He also asserted that it was a damning piece of prejudice for the crown to question the accused about a previous arrest and to make inferences about his criminal associations. He cited English judgments which declared that it was better for the occasional guilty person to go free than to sustain a conviction in which any infringement on the rights of an accused had occurred.

The three judges put their heads together for a minute, then Mr. Justice Fisher addressed the twenty-six-yearold barrister: “Although the bench

does not habitually remark on the able arguments of elder practitioners, we feel that we cannot refrain from commenting on the brilliant manner in which so young a man has argued his appeal.” A new trial was ordered.

On their second chance the defense trained all its guns on the identification evidence. When it was completely blasted everything else toppled over, with the result that Mickey McDonald went free.

This case taught Martin what he still considers his most useful lesson outside the law books—to look with particular suspicion on all identification evidence. “When any witness says, with no matter how much conviction, "This is the man,’ the statement should be regarded as merely an opinion and not a fact.”

He has found that frequently what passes for perfect identification in court —if counsel is not alert—is not identification at all. Investigating a case brought to him at the appeal stage he discovered that following the arrest, three bank employees who had been robbed were taken to see the accused in the police station cell and asked if he was the man. Each sa:'’ he “thought” he was. Afterward they unhesitatingly picked him out of a line-up. But, Martin argued, they picked him out' not as the robber but as the man they saw in the cells. The sentence was quashed.

After the McDonald case Martin went into practice on his own. He rented an office in the same building, a few doors down the corridor. His gracious sister Arlene became his secretary. They have been in the same simply furnished little office ever since.

Mickey Had His Chance

Martin didn’t have long to wait for his first client. No sooner was his name dry on the door when he received a call from Mickey McDonald himself. This time he was charged with robbing a store. Martin got him off but also made up his mind about the once-to-a-customer policy. He told McDonald he could either keep out of further scrapes or get a new lawyer.

Three years later, in October 1944, Mickey was front-page news again. He was one of a gang arrested for highjacking a thirty - five - thousand - dollar truckload of liquor and kidnaping the driver. He pleaded with Martin to defend him once more but Martin made his decision stick. He was associated with the case, however, defending another member of the gang, Benedetto Zanelli. The results of the trial were fifteen years in the penitentiary for Mickey; ten years for a second member of the gang; five for Mickey’s brother Edwin. Zanelli got two years less a day. It was while serving this sentence that Mickey McDonald escaped from Kingston Penitentiary in August 1947 and has not been heard of again.

Martin has never handled a civil case since then. To him the only legal situation of importance is when a person’s life or liberty is in jeopardy. But he also has a personal temperamental reason for preferring criminal law. “1 don’t want anyone coming into my office ordering me to do this or that about his affairs,” he says. “In my kind of practice I make the decisions and run everything my own way.”

Charles Dubin, one of Martin’s most distinguished students, came into a half-million-dollar civil case early in his career. He wanted help and persuaded Martin to work on some of the problems for a portion of the very substantial fee. They met for a few discussions, Dubin relates, but Martin could never get serious about the work and finally asked to be released. “It all seemed like a silly puzzle to him,” says Dubin. “He couldn’t care less how the fight over the money came out. At the time, I know he was quite worried about a carpenter who was in danger of going to jail for forty days.”

Martin is not even his own family’s lawyer. When he bought his new house in Bayview last year he had a lawyer across the road arrange the deal.

Arthur Martin is a bachelor and he lives with his mother and sister. His sister-secretary, Arlene, is available to him around the clock. For many years they lived in a central apartment until Martin bought a house to please his mother, who had been used to a place of her own and a garden. It is a beautiful southern colonial-style home, on -*'n acre of lawn; but Martin has no more

to do with running it than if he were a guest. Outside his work his mother and sister look after everything for him. They buy all his clothing, they select the cloth for his suits and Arlene arranges the time for fittings. He doesn’t buy shoes in the ordinary way—Arlene brings an armful from the store.

The family works as a team but neither Mrs. Martin nor Arlene have ever seen Arthur Martin in court. They get a play-by-play description of the trial by continuous telephone calls from Pat Hart, the student currently articled to him. Whim the jury is out

they are all nervous at the same time and they hear the verdict only a few minutes after it is given. Every year in class and guest-lecturing Martin is asked the same question at least once: “Don’t you think people who commit crimes are a peculiar type of person, who must have been born that way?” To which he replies patiently: “In my opinion there are no born criminals. Most of the people I have defended were known as decent, law-abiding citizens, some among the finest in the land. I would not be a bit surprised to see any one of you charged with murder.”