Hart, McLeod, Dube, Foote, Formenton charged with sexual assault

[taxbuster]

Originally Posted by Locke

Sounds like they're planning a 'Boys will be Boys' defence.

I hope nobody buys that.

And "NO" still means....NO.

[MBates]

A technical gripe:

It is annoying that the reports on this describe the jury trial having been requested and "granted". It is a constitutional right that was elected by the accused. The accused get to either choose a jury or not.

On to more interesting notes:

- Making the election of judge alone or jury? It is one of the most difficult decisions to actually make in a sexual assault trial...mostly because there is no real way to guess which mode of trial may increase your odds.

And there is a whole extra layer of complexity when you have to conduct a challenge for cause procedure when picking jurors on the basis of the massive pre-trial publicity surrounding a case like this one.

As it relates to sexual assault in particular, if you think that your client cannot or will not testify it is probably still correct that a jury will tend to pay more attention to that (in a negative way) than most judges would.

And there is one narrow extra way you can win with a jury that you cannot with a judge (at least not overtly) - nullification. You can be blatantly guilty according to law and a jury still has the power to acquit (even though they are violating their oath to do so). Of course you cannot actually tell them that so you have to hope they figure it out on their own.

- Mistrials due to hung juries are not that uncommon, but the majority of jury trials for anything other than homicides just do not get reported on. I would say most of the time the accused takes more comfort in knowing there can be differences of opinion among reasonable people and when you elect judge alone you just get that one person. If they do not see it your way you lose and go to prison. A jury allows for up to 12 chances to have one person on your side and prevent a conviction.

A mistrial is not a technical win but for an accused any day you are not yet convicted you are still 'winning' in practical terms. And just because a trial can be re-run does not mean it will be. There are many reasons that might lead a prosecutor to not do trial #2 after a hung jury mistrial. One of the most significant in a primarily credibility case is there is now a full transcript that is available for impeachment of the complainant at trial #2 that did not exist before. The second trial seldom gets clearer for the Crown and often gets much more messy.

- The question regarding appeal strategy has been answered...and I agree the likelihood of a successful appeal is lower on a jury verdict than for judge alone trial (which applies both to an accused or Crown appeal). Increasingly, appeal-protecting an acquittal at trial is a much more realistic factor for an accused to consider than ever before...and Crown appeals of jury acquittals are far less likely to even be filed let alone won. In part this is because Crown appeals are limited to issues of law alone...but when you have lengthy written reasons of a trial judge, issues of fact and mixed fact and law somehow seem to find their way into things when they ought not to.

- As to the suggestion that they will run a 'boys will be boys' defence...I really do not know where that is coming from. But what it emphasizes for me is how little the general public has yet to comprehend how drastically Canadian law has recently skewed against the accused - only in the area of sexual assault.

- The federal government has made sexual assault easy to successfully prosecute, correspondingly difficult to raise reasonable doubt, and even has imposed mandatory judicial training on sexual assault that they refuse to disclose to the public what the judges are told is the "correct" information to guide them. In my experience at least, rarely is any type of 'boys will be boys' narrative even attempted anymore - and if it is - it is shut down abruptly.

[taxbuster]

Can a trial lawyer explain why a mistrial might be declared by the judge in this case? Would that be jurors discussing or talking outside etc? (Potential examples…clearly the actual reason is being withheld?)

[bdubbs]

Originally Posted by taxbuster

Can a trial lawyer explain why a mistrial might be declared by the judge in this case? Would that be jurors discussing or talking outside etc? (Potential examples…clearly the actual reason is being withheld?)

From what I read, it was likely that there was a conversation between lawyers that happened too close to the jurors, but that's just from some guy on Reddit so take it with a grain of salt.

[Cycling76er]

Mistrial declared:

https://www.cbc.ca/news/canada/londo...-ont-1.7518317

[sureLoss]

Originally Posted by taxbuster

Can a trial lawyer explain why a mistrial might be declared by the judge in this case? Would that be jurors discussing or talking outside etc? (Potential examples…clearly the actual reason is being withheld?)

Not a lawyer, but given the judge dismissed the entire jury and started selection of a new jury what could of occurred was the jury saw or heard something that the judge might have ruled as being prejudicial to either the defendants or the victim.

For example, if the judge had ruled something about the defendants or victims past was not to be brought up in pre-trial motions, but it was brought up during someone's testimony.

[Locke]

Originally Posted by sureLoss

Not a lawyer, but given the judge dismissed the entire jury and started selection of a new jury what could of occurred was the jury saw or heard something that the judge might have ruled as being prejudicial to either the defendants or the victim.

Wacky ol' Judges just think Juries just grow on trees!

[GullFoss]

Originally Posted by Locke

Sounds like they're planning a 'Boys will be Boys' defence.

I hope nobody buys that.

I don't think they are. They're going to argue that she consented.

The witnesses themselves are likely to be biased against the victim in favor of willful blindness and cognitive dissonance to protect their sense of self, which is of huge help to the accused. If the witnesses agree that she was a rape victim, then they basically have to live with the fact that they witnessed gang rape and did nothing. Instead, if they force themselves to believe it was consensual, then they're just people who witnessed "consensual group sex with an exhibitionist".

[CroFlames]

Was in confirmed that the victim was drinking? If so, doesn't that auto-disqualify the defense' argument that it was consensual?

[BoLevi]

Originally Posted by CroFlames

Was in confirmed that the victim was drinking? If so, doesn't that auto-disqualify the defense' argument that it was consensual?

This is a strange argument intuitively.

It seems like a restrictive over-reach to suggest that drinking automatically removes someones agency.

It's a de facto restriction on the freedoms of the "drinker".

[BoLevi]

Originally Posted by MBates

- As to the suggestion that they will run a 'boys will be boys' defence...I really do not know where that is coming from. But what it emphasizes for me is how little the general public has yet to comprehend how drastically Canadian law has recently skewed against the accused - only in the area of sexual assault.

- The federal government has made sexual assault easy to successfully prosecute, correspondingly difficult to raise reasonable doubt, and even has imposed mandatory judicial training on sexual assault that they refuse to disclose to the public what the judges are told is the "correct" information to guide them. In my experience at least, rarely is any type of 'boys will be boys' narrative even attempted anymore - and if it is - it is shut down abruptly.

This is interesting. I wonder if it has corrected things. Or has it resulted in a significant increase in people who didn't commit crimes going to prison?

[CroFlames]

Originally Posted by BoLevi

This is a strange argument intuitively.

It seems like a restrictive over-reach to suggest that drinking automatically removes someones agency.

It's a de facto restriction on the freedoms of the "drinker".

I saw it on Austin Powers.

[PaperBagger'14]

Originally Posted by CroFlames

I saw it on Austin Powers.

I still use “twins, Basil” in everyday conversation

[The Cobra]

I think the testimony of the players who were there but did not participate might be the smoking gun that ultimately fries these guys.

While the "boys will be boys" mentality might have been more prevalent back then, I expect a number of these non-participants will now tell the truth about what actually happened. It would go directly to the issue of consent.

Just a guess though.

It certainly answers the question though as to why they can now prosecute when before then didn't.

[taxbuster]

Originally Posted by The Cobra

I think the testimony of the players who were there but did not participate might be the smoking gun that ultimately fries these guys.

While the "boys will be boys" mentality might have been more prevalent back then, I expect a number of these non-participants will now tell the truth about what actually happened. It would go directly to the issue of consent.

Just a guess though.

It certainly answers the question though as to why they can now prosecute when before then didn't.

I think, if the Crown's allegations and statements today are correct, that the videos provided or seized may be the smoking gun.

Rick Westhead's story on this is linked below. It is NOT a pleasant read.

(Mods, please delete if this is not permissible).



https://www.tsn.ca/hockey-canada/ric...rial-1.2297069

[Scroopy Noopers]

Originally Posted by taxbuster

I think, if the Crown's allegations and statements today are correct, that the videos provided or seized may be the smoking gun.

Rick Westhead's story on this is linked below. It is NOT a pleasant read.

(Mods, please delete if this is not permissible).



https://www.tsn.ca/hockey-canada/ric...rial-1.2297069

“We anticipate you will hear evidence about police being contacted, and then about text messages sent by Mr. McLeod to [E.M.], including a message in which he said: ‘What can you do to make this go away?’”

Something the innocent are known to say…

[Buff]

Trial seems to be moving slowly. They ended today early due to technical issues... it was too hot for the A/V equipment to properly function. https://www.nytimes.com/athletic/632...illance-video/

That link isn't behind paywall.

[Maraqopa]

The athletic article above states

“One video showed Batherson, Howden and Cale Makar dancing to The Killers’ “Mr. Brightside” song.”

I thought Makar was not there? Perhaps this is a typo.

Edit. Missed the part where it said earlier date. Sorry.

[FlamesAddiction]

Originally Posted by Maraqopa

The athletic article above states

“One video showed Batherson, Howden and Cale Makar dancing to The Killers’ “Mr. Brightside” song.”

I thought Makar was not there? Perhaps this is a typo.

Edit. Missed the part where it said earlier date. Sorry.

Yeah, maybe I am mixing it up with with a different player, but I thought that it was reported that Makar was at the bar but called it earlier than others because he was going on a trip the next day with his family or something that.

[Royle9]

Well that article details some pretty crazy stuff, pretty much all guilty at this point.
Can totally see why Dube got stressed the minute he knew this stuff was being leaked, though I'd wager his mental health was still better than the poor young gal.

Sickening.