Defence counsel: Are you sure you did not enter the 7Eleven at 40th and N.E. Broadway and hold up the cashier on June 17 of this year?
Defendant: I’m pretty sure.
—from Disorderly Conduct, extracts from real New York state court cases; Norton, 1987.
Defence counsel Eddie Greenspan will never forget his first murder trial 23 years ago because his client’s own testimony lost the case. “The only reason I called him to testify,” says Greenspan, now 51 and among the nation’s most successful criminal lawyers, “is that I thought I was losing and, besides, I thought he did a pretty good job.” The jury thought otherwise and convicted the defendant, later sentenced to four years imprisonment, on a reduced charge of manslaughter. That evening, Greenspan ran into the jury foreman in a Toronto theatre lineup. “He told me that up until they heard my client testify, they had pretty much agreed on an acquittal,” Greenspan recalls. “I don’t know whether I left in the middle of the movie because I didn’t like it or because I was so upset, but I haven’t walked out of one since.” Like Greenspan, hundreds of defence lawyers across the country have, at one time or another, found themselves in an uphill courtroom battle and needing a client’s testimony. It is not clear how often the tactic works in jury trials because shortly after Greenspan’s initiation, Parliament passed a law forbidding jurors to reveal what they discussed among themselves. But calling the defendant as a witness is risky because there is no way of predicting what impression he will make on the jury, or how he will stand up under cross-examination. “You try to avoid calling your client if you can because there’s more potential for him hurting the defence than helping it,” says Toronto criminal lawyer Alan Gold. “It’s an old story—one less witness, one less chance of something going wrong.”
However, several famous Canadian murder trials demonstrate that, either way, things can go wrong. Colin Thatcher, the son of former Saskatchewan Liberal premier Ross Thatcher, was accused of the January, 1983 shooting of his ex-wife JoAnn in Regina. At his trial the following year, Thatcher testified—as did six other witnesses—that he was 72 km away in Moose Jaw at the time. But he was convicted and sentenced to life, a minimum of 25 years. In 1988, Nova Scotian Donald Marshall was convicted of second-
degree murder and sentenced to life despite his testimony that someone else had killed the victim, Sandy Seale. The jury should have listened; after serving 11 years for a crime he did not commit, Marshall was set free. On the other hand, Mississauga, Ont., building contractor Peter Demeter did not testify at his widely publicized 11-week trial for procuring the murder of his wife, Christine, on July 18, 1973. His silence did not help him—he was found guilty and sentenced to life.
A defendant cannot be compelled to testify —either by his lawyer or anyone else. And if he does not, either because he refuses or his lawyer advises him against it, the Canada Evidence Act prohibits the judge or the prosecution from commenting. Sometimes jurors will wonder why an accused did not speak on his own behalf, and if they ask the judge
privately, he will simply read them the law.
But for lawyers, the issue is never simple. Gold says every defence lawyer has his own rules about whether to call a client to testify. ‘There are a number of factors,” he says. “One is what kind of impression you think the client will make, whether he or she is an attractive person because attractive people are more persuasive in our society, whether he’s got any hope if you don’t call him. Sometimes you think, "What’s he got to lose?’ ” One Canadian Supreme Court judge says a defendant’s attitude and appearance should weigh heavily in the defence lawyer’s decision to put his client in the witness box. There are some guys that look guilty as hell, and they present defence counsel with a real problem,” he says. “If the guy is really quite bright, sometimes the defence—all other things being equal—may sense that what he has to overcome is the jury’s likely impression of his client. But let’s face it; a lot of guys who wind up in the criminal courts aren’t bright enough to withstand crossexamination.” Adds Gold: “If the defendant looks like a gorilla, it would be a pretty remarkable case where the jury could look beyond that and decide that it had really misjudged this guy.”
All the players in the courtroom drama influence, to one degree or another, a defence counsel’s decision about putting an accused in the spotlight. Gold includes his perception of the jury and the competence of the prosecution in his calculations. To defence lawyer Earl Levy, also of Toronto, a major concern is the prospect of his client spending years in prison. “If an accused claims he or she is innocent and doesn’t take the stand to say that, they may regret it for the rest of their lives.” And if there is a question as to whether a defendant intended to kill a victim, “it’s imperative that the accused testify to make sure the court understands what was in his mind,” he adds. “There are often questions that only the accused can answer.” But in the final analysis, says Levy, “there is no doubt that the decision about calling the defendant is the toughest a defence counsel has to make.” And occasionally, for both lawyer and client, a tough one to live with afterward.
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