Articles

The Lawyer who never wins a Case

MAX ROSENFELD June 11 1955
Articles

The Lawyer who never wins a Case

MAX ROSENFELD June 11 1955

The Lawyer who never wins a Case

Articles

MAX ROSENFELD

If you’re a fan of Perry Mason — or even Mike Hammer — you won’t recognize Henry Bull QC. As crown prosecutor he insists he’s on nobody’s side, sometimes gives advice to men he’s prosecuting and says a conviction means no more to him than an acquittal

LAST YEAR when the National Film Board was shooting a movie called Problem Clinic, which told about free legal aid in York County, Ont., the big court scene actually took place in a Toronto City Hall courtroom. And the actors were the real court officials in the roles they play every day.

The prosecutor was Henry Bull QC, a calmlooking man in his middle forties with greying hrown hair and a clipped mustache who looks like almost anyone except the crime-novel portrait of a brash and combative prosecuting attorney. Yet few lawyers in fiction or real life are busier than Bull. Besides thousands of minor cases in which he participates, he has at least fifty jury trials a year, many of them lasting several days. In his career he has prosecuted seven murder cases.

As the Film Board cameras rolled to tell the story of Problem Clinic, Bull was cross-examining a professional actor impersonating an accused man. He did it in his usual quiet patient polite manner. Suddenly the director shouted, “Cut!” and motioned to Bull.

“Come on, Mr. Prosecutor,” he said urgently, “let’s start prosecuting. You’ll never get a conviction that way.”

If the director was looking for action from Bull, he got it, although not for use in the film.

“I’m not a gangbuster,” the prosecutor replied heatedly. “Remember, this is a Canadian court.” Then, patiently, he explained to the startled Film Board crew that it wasn’t his job to send a man to jail, but to offer all the evidence, whether it was against the accused or for him.

“The crown never wins,” he said, “and the crown never loses.”

Canada’s two hundred and nine crown prosecutors, including Bull, don’t have to impress anyone with a long string of convictions. Their jobs don’t

depend on the results of election; nor are they stepping stones to high political office. In Canada the crown prosecutors are appointed by the attorneys general in each province to represent the crown in court. This is in contrast with the judicial system in the United States where prosecuting attorneys— like Thomas Dewey and William O’Dwyer— are elected and often become widely known political figures after sensational courtroom careers.

In a recent report on a trial, a U. S. picture magazine pointed to “the prosecution table, at which are seated J. Raymond Carskadon and Charles E. Raymond, who have prosecuted twentyeight alleged murderers and seen all but one convicted.” In the case of Bull and his nine colleagues in York County, not even the Attorney General’s Office bothers to keep track of their convictions. As Henry Bull puts it, the truth is more important, than winning or losing.

He’s Clever at Catehing a Phony

Bull has a courtroom manner to go with his precise understanding of his job. He’s not a showman; rather, he’s alert and persistent, always ferreting for facts, trying to get at the truth. After long practice he’s developed a rare ability at detecting a lie or a phony. He’s also become a canny judge of character, a talent he demonstrates every time he selects a jury. He has no formula for this, beyond insisting that the jurors be honest and intelligent. And the more grave the offense, the more intelligent he wants the jurors.

In a recent case of robbery with violence, which carries a sentence of five years, Bull took particular pains in picking the jury. “That’s a long time to send a man to jail,” he said. There were

forty jurors. They stepped forward in turn as the clerk of the court announced in his flat monotone: “Prisoner, look at the juror. Juror, look at the prisoner.” Bull looked at their names and occupations on the list the court had provided.

A stooped grey-haired man in his fifties stepped up; he was a barber. “Content,” said Bull. Later he explained, “He works hard for his money. He’s steady and interested in his community. He’ll he deadly serious about the case.” When a young deep-chested good-looking man stepped forward Bull said tersely, “Stand aside.” From police records he had learned the man was once convicted of theft. The defense attorney had accepted a middle-aged businessman, but Bull told him to stand aside. The man looked disappointed.

“That man has a sore back,” Bull said later. “You could see it from the way he walked. He’d have to sit all day in court on a hard chair. The pain would distract him. That’s not fair to the case.”

In presenting his case Bull almost never shows any emotion, and he usually tells the jury, as he did in the robbery case: “Keep emotion out of

your deliberations and deal with the facts as though they were mathematics. There is no room for the heart to work; it must be the head.”

He is sometimes stirred to anger, however, if a witness or an accused fails to show proper respect for the court or appreciation of the gravity of a crime. Recently in Toronto Magistrate’s Court, a young man in flashy clothes, smirking at some friends at the back of the courtroom, stood in the witness box and tried to answer Bull’s questions with wisecracks.

“Stand up straight,” Bull barked at him. “Don’t slouch in that box. And when you answer me. answer clearly.” The

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youth reddened and shamefacedly obeyed.

When a sixteen-year-old boy was found guilty of robbing four messenger boys, prosecutor Bull suggested to the court that he be spanked on the Toronto City Hall steps. “Quite probably,” he said sarcastically, “this boy thinks that, standing here in court, he’s a hero to his friends.” When the youth lost some of his cockiness Bull didn't object to him being placed on probation.

Bull prosecutes in Magistrate’s Court every morning in intervals between Supreme Court assizes, on charges such as petty theft, drunkenness, prostitution and driving violations. Afternoons he devotes to the major cases— reading law, interviewing witnesses and consulting with police officers. An important distinction between the crown prosecutor in Canada and his opposite number in some of the United States is that he has nothing to do with the police investigation; but when it is completed he advises what charge should be laid and then he goes to court.

Magistrate’s Court is constantly crowded and rushed and there's a verdict almost every fifteen minutes. Bull takes about sixty seconds to assimilate the “dope sheet” that police supply for every case. Within a few

days he may have four or five cases of housebreaking and the basic elements in all are usually the same. Questioning the two or three witnesses in each case is quick and routine.

He prosecutes dozens of cases of drunk driving and regards most of them with extreme distaste. He has heard the phrase “only two beers" offered bv so many drivers that he swears, ironically, he’ll ask for a dismissal for the first one who admits drinking six.

Bull doesn't drive a car himself and when he goes out to the theatre or to

visit friends in the evening it's usually by taxi. One of the reasons is that he dreads the possibility of becoming involved in any traffic mishap and being hauled into the court where he works.

In addition to petty crimes and traffic offenses, the Magistrate’s Court also hears preliminary evidence in major cases. The crown prosecutor presents this evidence against people accused of crimes that are in the jurisdiction of higher courts, and the magistrate decides whether the crown’s case is strong enough for a trial.

A few months ago Bull was about to prosecute a man charged with attempted murder. The man was being defended by a young barrister who was just a year out of law school. He prepared eagerly for the case and. when it was about to go on. he dramatically confronted Bull outside the courtroom.

“I'm defending an innocent man, Mr. Bull," he said with emotion, “and I’m going to put him right on the stand and prove it.”

Bull looked at his watch and quickly took the young lawyer aside. “Putting

your client on the stand at this point is very dangerous,” he advised him. “He’ll be tied down to his evidence. Remember, it’s given under oath; if the case is sent to trial and he varies his evidence the slightest hit. it's apt to be pretty incriminating.”

He suggested that the young lawyer learn all he could about the crown’s case and reveal as little as possible about his own. Two months later in a higher court the young lawyer showed he had learned the lesson well. He put it up to the jury that the crown must prove his client guilty. With the evidence it had the crown couldn’t convince the jury and the accused was found not guilty of the charge.

When an experienced courtroom lawyer is handling the defense, however, Bull seldom has to worry about the rights of the accused; he has his own hands full. In one murder case not long ago G. Arthur Martin, often regarded as Canada’s outstanding criminal lawyer, was appearing for the defense. The accused was a twenty-

“He knew she was going with another man. He pleaded with her—then killed her.”

four-year-old City Hall clerk, John Harvey Snider, who was arrested at night in Toronto’s St. Michael’s Cathedral, where police had been called by a priest, Father Madigan. Snider had killed his wife in their bungalow home.

At the police station a signed statement was taken from him. It said that on her way to retire for the night, in her own bedroom, his wife said she was leaving him in a few days. He knew she was going off with another man. After she was in bed, he said, he went in to plead with her to stay, but she answered, “No.” “Finally,” the statement said, “she made a motion as if to hit me and I grabbed her around the throat with both my hands and pushed her back onto the bed. She began to struggle and T hung onto her throat

until she lay still.” Horrified at what had occurred, he said, he wanted to kill himself. He went down to the basement to get a rope to hang himself; but when he came back upstairs he heard sounds still coming from his wife and saw bubbles at her mouth and nose. “So,” the statement continued, “I put the rope around her neck and pulled it until she was quite still.” Then he rushed to Father Madigan at St. Michael’s and on the way threw the rope out of the car.

The newspapers called it the Skip Rope Murder Case and the courtroom was packed during the three days of the trial. Most of the spectators were lawyers and law students who came to watch the two masters at work. The atmosphere was almost unbearably

tense. In the prisoner’s dock Harvej Snider looked exhausted.

Martin proposed that Snider’s statement to the police be thrown out on the ground it wasn’t in the exact words of the accused. By cross-examining a police officer, he proved that as the accused was speaking the officer put down only the gist of what he remembered the accused had said. Bull argued that the statement was born in penitence and remorse, that the accused was cautioned before making it, the typed version was read to him and he signed it. The judge ruled the statement admissible.

The defense questioned crown pathologist Dr. Chester McLean. He said the gurgling noises the accused thought he heard were not indicative of life but of death. Martin contended there was never a rope applied to the woman’s neck. The idea got into the statement., he suggested, because it was the idea the accused had when he came upstairs with the rope and heard the sounds. He didn’t do it, Martin said, but he may have related it to the thought in his mind and the officer mistook the thought for the deed.

The defense contended that death was accidental, and that when the accused grabbed his wife he was acting in the heat of passion caused by provocation and that under the law the jury was bound to find him guilty of no more than manslaughter.

Bull accepted the evidence that Mrs. Snider was dead before her husband went to the basement. But, he added, when the accused came upstairs, so far as he could tell, she was still alive, and he put the rope around her neck to finish the job. “Now,” he asked, “is the fact that he put it around her neck to cut off what life was apparently there indicative of what he intended to do in the first place when he put his hands around her neck and held them there until she lay still?”

The Prisoner Tried to Talk

Harvey Snider himself went into the witness stand, daubing his tears with a soaking handkerchief. Bull crossexamined him relentlessly.

Addressing the jury, Bull suggested there was jealousy in the mind of the accused because his wife carried on with another man. “Gentlemen,” he said, looking at the jurors, “unfoi’tunately every day through these courts go cases of marital infidelity. It would not be the first time that a wife has raised her hand as if to strike her husband, or struck him—but, gentlemen, does that deprive the ordinary man of his power of self-control? If it did, gentlemen, we would not have one trial of this nature in this courtroom but we would have a series of them day after day.”

“Gentlemen,” he said in conclusion, “you have taken an oath to find a true verdict according to the evidence. I ask you to be true to that oath.”

At this point the distraught Snider leaped to his feet and said he had something to say. In a flash his lawyer Martin was at his side, trying to calm him. The judge cautioned Snider against saying anything and ordered the jury to leave the courtroom.

The jury was out four hours. When it returned Bull reached for a file of papers in his brief case and held it open before him; but when the foreman announced, “Not guilty of murder, guilty of manslaughter,” he closed his eyes.

Later Bull said, “It was the most painful case of my career. Although I am in favor of capital punishment, I felt this young man should not be hanged for what he had done. The jury did what I couldn’t do for him and

I’m glad of their decision.” Since 1950, only three persons charged with murder in York County have been sentenced to death, and Bull has never had anyone convicted of murder.

The Snider case was the second in a row handled by Bull in which a husband accused of murdering his wife was found not guilty. The next morning the phone rang in his office; when he answered it a woman’s voice shouted: “What are you trying to do —declare an open season on wives.” Bull has grown accustomed to occasional jibes like this for he has been a crown prosecutor for fifteen years.

Some lawyers say that in making a career of his difficult job, he isn’t being fair to himself. Usually a barrister serves as a crown attorney for five or six years, then goes into private practice, frequently defending people he formerly prosecuted. Bull’s salary is about eight thousand dollars a year while some defense lawyers earn six or seven times that.

Bull reminds himself constantly of the fact that he can’t become a zealot about winning court cases, although he admits he would be less than human if he didn’t occasionally get a kick out of convicting a criminal by digging out the real facts in evidence and destroying spurious evidence. A prominent defense lawyer who was once a crown prosecutor, Joseph Sedgwick QC, of Toronto, agrees with Bull that it’s often a hard job.

“It’s difficult to reconcile the human inclination to win with the lofty theory of the crown prosecutor,” he says. “But he must bear in mind at all times that the raised dramatic voice and the lifted waving arm are not the part of the crown.”

YOLI Can’t Hound a Man

Just as he decides to press a case against a prisoner, Bull can also advise the crown not to prosecute. A recent example of this was a case in which an official of the Ontario Department of Highways accepted bogus tenders from two accomplices in the sale of department-owned land. He was arrested and later sentenced to three years in jail. The Attorney General’s Office then decided to bring a case against the two accomplices. The Deputy Attorney General, Clifford Magone QC, turned the matter over to Bull. But when Bull was told that the main witness was the convicted official, who was now willing to give testimony, he advised against laying any charge at all. He quoted a basic rule in the law of evidence that it’s dangerous to convict on the uncorroborated testimony of an accomplice, which the judge would have to tell the jury. He urged the department to drop the case on the ground that ordinarily no charge is made unless there is quite substantial evidence, because the state must never appear to be hounding.

The case was taken to another prosecutor on the staff and at the trial the jury found both accused not guilty.

The most dramatic part of a trial generally is thought to be the closing speech to the jury. To Bull the opening speech counts most. This is when the whole case is outlined from the prosecution’s point of view. At home he painstakingly writes this speech in longhand. The final address he gives from a few' headings jotted down during the trial. With the opening speech he nails the case down. After that he has to fight to keep the defense from loosening it; therefore, more than half his task is accomplished if he nails solidly at the beginning.

His speech is straightforward and easy to follow. Bull’s plan is to let the

jury discover for themselves the significance of a few facts and some connections between his general theory and the evidence, which are bound to impress them more than if he deliberately pointed them out.

Bull seldom advances far in the trial before he encounters defense tactics. When an experienced lawyer like Harry Rose QC, is on the case they start as soon as Bull begins examining the first crown witness. Defense counsel stands up with his hand cupped to his ear and says, “Will the witness speak a little louder, please—it may be difficult for the jury to hear.” Or he may get up and in a loud voice call to an attendant, “Would someone open the windows and let the court have some fresh air?” From the beginning of the trial Bull has held the floor. But now the atmosphere he has created is snapped and the jury is reminded a defense lawyer is waiting to tell another side to the story. “He stole a scene,” Bull appreciatively says afterward.

At times Bull seems to be busy making rapid notes. Actually, he’s doodling; a talented caricaturist, he’s making little sketches on the back of the indictment and on scraps of paper, of the judge, the witnesses, the accused. After a trial, reporters and court clerks rush for the counsel table to grab any left behind. Without his permission, one was recently used in a Toronto tabloid.

How to Trap a Witness

The first Bull sees of a defense witness is at the trial, when he’s called to give evidence. Soon after, the defense lawyer takes his seat saying, “Your witness,” and it’s time for Bull to cross-examine. Most defense witnesses are personally interested in the result of the trial and their testimony is difficult to shake because they have had weeks and months to go over it in their minds. Bull’s own witnesses are mainly policemen and the most important thing he has to say to them before a trial is to remember that once they have made the arrest and prepared the case their primary status is that of witnesses.

Bull’s favorite method of crossexamination is to start with a question for which a witness most likely has not prepared himself. If he’s not telling the truth he has to supply the answer from his imagination. The next question is again on an indirectly related matter, and so is the next and the one after that. When the witness’ mind is sufficiently far off on a side issue, Bull slips in a question asked by defense counsel. If the witness is relying on his imagination and gives a different answer, Bull has him. He then reels him in with questions the witness can’t answer fast enough and still keep his previous inventions straight.

A precious tactic of many defense lawyers is to tell the jury that the prosecutor commands the facilities of

high-powered police departments with scores of experts to interview witnesses and comb the country: that he has the services of great laboratories with pathologists, fingerprint experts, gun experts, photographers and that for any case he has almost unlimited funds. Outside the courtroom. Bull explains that the most ingenious investigators and the best labs can produce nothing but evidence, and this must be given under oath and cross-examined. “And.” he maintains, “if there is important evidence in favor of the accused the crown prosecutor is derelict in his duty

not to bring it forth at the hearing.”

During the notorious murder trial of Dr. Sam Sheppard in the U. S. it was widely believed that a psychiatrist’s testimony would have thrown some useful light on the case, but the prosecutor was trying to prove that Sheppard committed a monstrous crime, and so introduced no evidence that might lead to any other conclusion. The defense didn’t produce psychiatric evidence either because its contention was that another person committed the murder.

The same week in Toronto, defense

counsel John Brooke received a letter from crown prosecutor Henry Bull, saying the murder charge against Brooke's client was being reduced to manslaughter because the crown had a medical report, a copy of which was enclosed, showing the accused was too intoxicated to form an intent to kill.

When the time comes to address a jury, Bull thinks a speech is superfluous. He thinks juries today are better educated and more sophisticated than those of former times and can appreciate the evidence for themselves; all they need beyond that, he says, is

the judge’s instructions in the law. Nevertheless, a top-ranking defense lawyer, Charles Dubin QC, says the best jury speech he’s ever heard was given by Bull.

It was in a robbery case in Toronto. A woman bookkeeper carrying a payroll of $1,458 from the bank to her office was knocked down by a man who snatched her handbag with the money. He got into a car and drove away. But the woman caught a glimpse of his face and got the license number of the car. A few minutes later, another woman, at work in a nearby office, saw two men

get out of a car and step into another. She thought this looked suspicious, so she took down the license numbers of both cars and telephoned the police.

About three hours later a man named George Harvey was arrested in one of the cars in a Toronto suburb. He had considerable money in his possession. Then the woman bookkeeper identified a picture of a man named Allan Connelly in the police files; she said be was the man who robbed her.

Charles Dubin, who was the defense counsel, argued that the crown didn’t

have a case. Harvey hadn’t been identified. The money hadn’t been

identified. And Connelly had been

identified only from a photograph, by a woman who claimed to have caught only a glimpse of a robber.

“Bull didn’t bother to rebut the defense position,” Dubin recalls. “Instead he gave the jury an aerial view of the city where the crime took place. He located the bank, the place where the robbery took place, where the two cars were reported, where the two men said they were. He kept the streets and the movements of the men in front of

the jury all the time and thus convinced the jury that these two men must have been the crooks.

The jury found the men guilty and they were each sent to jail for five years.

After a long trial is over, the defense lawyer usually packs up and is able to celebrate or relax, but Bull stays on the spot and begins another case immediately. If the judge happens to begin charging a jury at 10 a.m. and finishes at 11.30 a.m., the jury retires and Bull gets started on the next case before lunch. After a murder case may come a case of motor manslaughter or another murder case. In his brief case he carries two or three briefs at a time.

One of the busiest lawyers in Canada. Bull enjoys this active professional life and has no intention of going into a private law practice. Originally, when he enrolled at Trinity College in the University of Toronto in 1929, he was going to be an Anglican minister. His father was supervisor of music for Windsor schools and also a church choir master. Henry, the eldest of four children, used to go to church with him. After two years at Trinity Bull no longer felt he had a calling for the ministry. A younger brother, however, became a parson and is now at the Church of The Good Shepherd in Hamilton.

He Hates Tough Prosecutors

In the middle of Bull’s third year at college his family could not provide him with funds, and he had to leave. He returned to Windsor where nearly a third of the population was on relief. He worked at odd jobs, selling Fuller brushes, teaching trigonometry, working in the Ford factory.

One day his mother said to him sternly, “You’re not getting anywhere.” She decided he should take up law by articling in his home town. The lawyer for whom he worked paid him nothing, so evenings and week ends he sold haberdashery in a store for ten dollars a week. During the summer he worked on a lake excursion boat.

After graduating from Osgoode Hall Law School, Bull was a solicitor in the Succession Duty Office of the Ontario Treasury; after a year he got transferred to the Attorney General’s Office, where he was appointed assistant crown prosecutor. In 1942 he joined the army and was a prosecutor in the legal department at Camp Borden; he was later appointed Assistant Deputy Judge Advocate. On his discharge he returned to his civilian position, back to his role as prosecutor. It’s a grinding exacting job.

When the day’s work is done Bull wants to close the door of his office, forget the day’s happenings. At home he reads philosophy. He and his wife entertain a lot and are seen frequently at Toronto social functions. They belong to several clubs. Wherever he goes, a source of constant annoyance to him are quips like, “Locking many up these days, Henry?”

But even more annoying to him is the popular—or movie version of the prosecuting attorney. During last winter’s assizes in Toronto, Bull and his wife went to visit friends one evening. When they arrived the friends were watching a television program and invited the Bulls to see it too.

Bull sat down to find himself watching a courtroom scene, and in the middle of the courtroom, shouting and shaking his fist at a witness, was a district attorney—the American equivalent of the crown prosecutor.

“That’s one thing I can’t stand,” said Bull, and, apologizing to his friends, he left the room. if