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When Canadian justice and new media collide

(2011-01-24)

By Chris Cobb, The Ottawa Citizen 

OTTAWA -- The “mountain” of graphic evidence tabled by Crown prosecutors at the Russell Williams sentencing hearing has led to a new and troubling frontier for Canada’s justice system and news media, say Williams’ lawyers.

Michael Edelson and Vincent Clifford 

In their first, and likely only, full-length interview since Williams was sentenced in October to the mandatory 25 years imprisonment, Michael Edelson and Vince Clifford said journalists inside the courtroom were being traumatized by lurid images displayed on big screens while simultaneously racing to send comments on Twitter and other instant messaging services.

“What resulted from time to time,” said Clifford, “was crude, unnecessary, misplaced tweet comments.”

“With tweeting you have 140 characters so there is very little you can cover,” added Edelson. “You are losing the context and not giving substantive descriptions of what’s going on. And some of what was coming back (from readers) was ‘this is horrible, it’s too much information and we don’t want to hear about this’.”

During their interview with the Citizen, the lawyers called for a high-level national debate over new media and its growing impact on Canadian court proceedings and spoke of how they deliberately put a protective “code of silence” on the Williams evidence — even within their own office — and how they agonized for days over the statement Edelson read in court at the end of the hearing.

Both lawyers saw the evidence available to police and prosecutors, including all the photographs and, in Clifford’s case, more than five hours of video that the 47-year-old Williams shot during his brutal murders of Jessica Lloyd and Marie-France Comeau.

Expressing a desire to put the Williams hearing behind them, the lawyers refused to discuss the personal impact of the case or any details of their dealings with Williams.

But Clifford did recently remark to the professional magazine Canadian Lawyer: “It’s something that will carry with us until we finish practising and maybe even for all our days.”

Edelson told the magazine: “We’re never going to forget what we’ve seen.”

The veteran lawyer, who has represented clients in some of Ottawa’s more high-profile criminal cases, also revealed he has been inundated with interview requests from U.S. TV networks and European journalists.

“We have turned down countless requests because it’s not what we do,” he said. “But there are certain lessons that flow from this case for lawyers, judges and the media and we feel pretty strongly about that.”

Most important for Canada, they said, is that the judicial system devise strategies to deal with new media and the inevitable encroachment of TV cameras into Canadian courtrooms.

“Law societies across the country have to come to grips with whether we need a new series of professional conduct rules to deal with this,” said Edelson, “and whether judges need some direction in when and how to deal with it.

“These are new media and they’re very popular and we have to address those issues in a very straightforward and transparent way so everyone knows what the ground rules are. It’s become a huge issue and I think it would be a fantastic thing for Canada to discuss it in a serious and comprehensive way.”

Instant messaging from a guilty plea such as the Williams sentencing carries no risk, added Edelson, because there are no witnesses to call. But he says it was a huge issue in the 2009 influencing peddling trial of former Ottawa Mayor Larry O’Brien trial, he said. (Edelson and Clifford successfully defended O’Brien. It was the first Canadian criminal court proceeding where, at the request of the Citizen, tweeting was allowed. The Williams hearing was also opened to tweeting at the request of the Citizen. Between the two cases, journalists broadcast tweets from a high-profile biker gang trial in London, Ont.).

“Traditionally when we do trials we have an order excluding witnesses so the next witness can’t tailor their evidence to the previous witness,” he said. “We do that so they don’t hear the evidence of the previous witness.

“With this new media you have a situation where people could literally follow the trial on Twitter and discover exactly what we are excluding them from the courtroom to prevent them from discovering. And I know for a fact they did.

“It was a big issue with O’Brien and it will be a big issue again.”

The answer, said Clifford, is not to necessarily ban instant messaging from courtrooms.

“But media have to recognize that there are certain inherent dangers in the process that flows from combining the portrayal of graphic evidence with the race to report. As counsel we have to think very carefully what we say in a courtroom. It is a reasonable expectation that journalists will think very carefully about what they say occurred in a courtroom.”

Edelson, a newspaper junkie, is more blunt, especially about Twitter.

“It’s rubbish,” he said. “I have no interest in looking at it. I’m a huge advocate of freedom of the press. It is a key component of a free and democratic society, but if you want serious analysis and serious discourse you have to look to serious journalists doing their job.”

During the Williams hearing, Edelson and Clifford say they saw some traumatized, exhausted journalists in tears over the images they had seen in the courtroom — images that lawyers for media outlets had asked to be made public.

All but a fraction of those available images were published or broadcast by mainstream media. Reporters and editors also decided that the graphic (written) descriptions of the videos shot by Williams were too disturbing and contributed little to the public’s understanding of the story.

This mass expression of media restraint confirmed for the two lawyers that the amount of evidence released by the Crown was excessive and their efforts to negotiate limits were justified. (Crown attorney Lee Burgess said he wanted enough evidence on the record to persuade future parole boards never to release Williams).

The evidence that was released was the result of intense negotiations between Edelson, Clifford and the prosecutors.

“We didn’t want it to be a runaway train,” said Edelson. “We wanted it to be controlled and structured. We spent a large amount of time with Crown counsel who were largely responsive to our concerns.”

Everything about the Williams sentencing hearing was unusual — the length of time it took, the amount of evidence tabled, the worldwide media attention it attracted and the statement Edelson read in court, shortly before Williams himself spoke.

The lawyers re-wrote the statement several times during the week in Belleville knowing, of course, it could not change their client’s fate.

“When you’re representing an individual for whom the remarks will have no impact on the court’s ultimate sentence you want to try and capture some of the larger philosophical concerns about our justice system and how you deal with people in his situation.

“Our mandate was to facilitate the project and it turned out to be a much larger project than we anticipated but from our perspective one of the more important issues was it be a dignified, civil process which didn’t become sensationalized and we often see in American scenarios.

“We wanted to acknowledge what was important,” said Edelson. “There was a lot of suffering in that courtroom — unbearable suffering and deep, deep grief among some of those family members. We wanted to acknowledge that.

“We have the best system of criminal justice in the world and are the envy of many countries,” he said. “It’s fair, civil, dignified and effective. So we made some philosophical statements and, from the letters and e-mails we got, I think we hit the right notes.”

Williams saw the statement ahead of time, but Edelson refuses to say whether the killer approved it.

Why did he take the case?

“I was asked to,” he said. “It’s probably no more complicated than that.

“When you take a case you often don’t know the details and that’s one of the risks. You may end up immersed in a file that’s very difficult. But that’s no reason to refuse.”


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