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    Bears for PresidentAnna Merlan
    2/05/16 2:46pm

    I make no judgments about it or it’s relation to credibility but the email the day after...that’s weird at least, right?

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      DulkyBears for President
      2/05/16 2:50pm

      “You kicked my ass last night and that makes me want to f—- your brain out. Tonight.”

      You mean this one?

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      Bears for PresidentDulky
      2/05/16 2:53pm

      That is what I’m referring to, yes.

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    publicdefendertotheendAnna Merlan
    2/05/16 4:29pm

    “These aren’t uncommon reactions for people who have suffered violence at the hands of sexual or romantic partners (and attacking a sexual assault victim’s credibility is a defense tactic as common as it is ugly).”

    I cannot tell you how disappointed I am with this statement. In any criminal case, regardless of the charge, the credibility of the witnesses is always an issue. In fact, most jurisdictions have a jury instruction that specifies which factors jurors can take into consideration when determining the credibility of the witness. These factors include prior felony convictions, certain misdemeanor convictions, the witness’ relationship to the parties involved and how they would be affected by the outcome of the case, reputation evidence (including reputation for untruthfulness), and how the witness’ testimony is supported or contradicted by other evidence. The fact is, whether it’s a sex assault, a murder, a robbery, a theft, or even a DUI, the credibility of every witness who takes the stand is ALWAYS at issue in a criminal case, regardless of whether they are a defense or prosecution witness. To say that raising questions about the witness’ credibility is an ugly tactic is basically stating that you either 1) do not understand how an adversarial court process works or 2) you do understand how it works and don’t care about trivial things like the presumption of innocence. (BTW, I know this is taking place in a Canadian court room and I don’t know how their court procedures work but the point is salient to all jurisdictions.)

    As a public defender and a feminist, I have grown increasingly disappointed and quite frankly angry with Jezebel’s and other feminist social media outlets coverage of stories regarding sex assault and domestic violence allegations in the criminal realm because it’s always framed as a (false) choice between always believing the accuser (which is the “correct” feminist position) or not believing the allegation (therefore you are victim blaming and not a feminist.) Statements like attacking the credibility of the witness as an ugly tactic furthers this false choice. An adjudicative process only works if it uses and respects the basic principles of due process of law. This means the presumption of innocence for the accused; it means the government has the burden of proving guilt beyond a reasonable doubt, not having to prove your innocence; it means the right to effective assistance of counsel; and it means that an allegation is not proof of guilt, it is merely an allegation. Believing that any person, even when they are accused of sexual assault, is entitled to those basic rights does not make me any less of a feminist; it means I believe in the basic constitutional rights anyone accused of a crime is entitled to.

    Over the past few years, we have heard over and over again how broken the criminal justice system is. There is also the reality that the few constitutional protections the criminally accused have are further eroded every day by federal and state court decisions. To be criminally accused means you have the full weight and power of the government against you. It’s a sad and terrifying reality I live with every day as a public defender. And it’s even sadder when normally progressive media outlets like Jezebel take positions like the one quoted above. To you it may seem like questioning the credibility of a witness is victim blaming when in reality it is one of the most basic and effective tools attorneys (both defense and prosecutors) use in every trial. Not bringing up inconsistencies in the witness’ story, how their testimony is contradicted by other testimony or physical evidence, what they have to gain from the outcome of the case- failing to do those things not only makes you a terrible attorney, it could also be tantamount to ineffective assistance of counsel.

    Unconditional belief in the complaining witness’ story is something one does if they are a sex assault or DV advocate; it is not a position that should be taken or even advocated for in the criminal justice system. These attorneys are doing their job- the central issue is whether these allegations happened and if they were consensual acts. By bringing up communications between the complaining witnesses and the accused after these alleged assaults happened is trying to get to the heart of the matter- they’re basically arguing it was a consensual act because these subsequent communications indicate that it was an activity the witnesses seemed to have enjoyed. If the counter is, “well this is a common reaction by victims of trauma,” then it’s not the defense attorney’s responsibility to do the opposing attorney’s job. If you want to introduce that type of evidence to rebuff that argument, then the opposing side needed to endorse a trauma expert to not only explain the effects of trauma but also that these witnesses experienced trauma and their actions were a result of that trauma. To make a blanket statement that this is a common reaction of trauma victims is not evidence that these witnesses had experienced trauma as a direct result of these encounters and their actions were a result of said trauma.

    The criminal justice system is already stacked against the criminally accused. Please don’t add to those odds by complaining about attorneys who are doing their job- they are effectively advocating for their client. Not liking the accused or having strong feelings about the crime with which they are charged does not change the attorney’s ethical duty to effectively represent their client. Most importantly, it does not diminish the accused’s rights, including the right to be presumed innocent until proven guilty.

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      Whore Vidalpublicdefendertotheend
      2/05/16 4:59pm

      Co-sign to the nth degree.

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      ideasleepfuriouslypublicdefendertotheend
      2/05/16 5:02pm

      First of all, I totally agree with what you have to say. I have a sibling who is a criminal lawyer who has explained to me how an adversarial court system is supposed to work (mostly when I raise eyebrows over some of her client’s stories..!), and the importance of witness credibility.

      Having said that, what I’d really like to see is just a wider understanding, in the public and possibly in the court system, of how sexual assault victims process their trauma. I know that nowadays, something like Battered Wife Syndrome* is something that is widely understood by the public, and thus more likely understood by potential jurors. I understand that either side is able to call expert witnesses to explain these kind of psychological responses, but I still think that it might be a bit of an uphill battle against the kind of biases people bring in with them. Not saying I have any real solution to this, but there it is.

      *Sorry if I’m using that term in a more colloquial sense than a strict legal/psychological term. I’ll admit I’m far out of my botany wheelhouse on this one.

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    ideasleepfuriouslyAnna Merlan
    2/05/16 2:40pm

    For anyone interested in hearing more about the practice of ‘whacking’ (i.e. poking holes in victim’s accounts by trying to trip them up on peripheral details of the event) there’s an excellent segment/podcast done by CBC’s The Current which takes a look at it, including a talk with a neurobiologist who talks about memory formation during traumatic events.

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      Dulkyideasleepfuriously
      2/05/16 2:44pm

      I’m not sure the accusers have tripped on peripheral details. The first accuser claimed she was deeply disturbed when she saw Ghomeshi’s face on the television or heard him on the radio after the alleged incident. Turns out she had sent him flirty emails after the alleged attack. She claimed it was “bait” but her credibility has been destroyed.

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      ideasleepfuriouslyDulky
      2/05/16 2:48pm

      I should make it clear that this segment wasn’t about the Ghomeshi trial per se, just about a courtroom technique that is often used in Canadian courts to discredit witnesses. They cited a couple examples from the trial itself, but they weren’t making the claim that this was a make-or-break point of the case.

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    XyzzyAnna Merlan
    2/05/16 2:45pm

    I get so angry that women’s behavior after they’ve been assaulted is used to discredit them. Usually women are raped by someone they know and will have to continue to interact with. Someone in their social network. Someone ina position of authority. There is a real potential for further damage that can accompany suddenly being hostile to a person in that context.

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      Pontypool's #1 DJXyzzy
      2/05/16 2:47pm

      Is it really that unreasonable to expect someone to say at some point “that wasn’t cool” or “don’t do that”? I’m not sure saying “I love your hands” will get the point across that his behaviour was unacceptable.

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      DulkyXyzzy
      2/05/16 2:48pm

      The trial is a he said/she said. How else do you expect Ghomeshi’s lawyer to defend him? The trial relies on testimony and Ghomeshi’s defense team has found numerous inconsistencies in in the stories of the two accusers.

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    SquigglesAnna Merlan
    2/05/16 2:46pm

    I didn’t have time to read the live tweets during the first day, but De Couture is killing it. I’m so excited to see her standing her ground, reiterating that what people think victims should do isn’t true to life.

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      DulkySquiggles
      2/05/16 2:49pm

      What are you talking about? It was another bloodbath.

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      ideasleepfuriouslySquiggles
      2/05/16 2:51pm

      There’s no untruth in this letter,” she says. “It’s very candid. And the last line in it was me pointing [to his hands] the very things he used to hurt me.“It’s a magnifying laugh, I don’t know... The things you used to hurt me I could learn to love,” she says. “So this and any other... communications change nothing.”

      http://live.cbc.ca/Event/Jian_Gho...

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    BabyGotFrontAnna Merlan
    2/05/16 2:56pm

    Attacking the credibility of anyone who brings allegations against you—-for any reason—-is part and parcel of a vigorous defense. It’s not specific to sexual assault cases.

    It’s most certainly relevant that his accusers continued to be in contact with him after their attacks, especially if their communications with him were positive and conveying that they enjoyed their time together and would like to see him again. That goes to the very heart of the matter at hand—-consent. It would be malpractice (in the US, at least) if his lawyer didn’t bring up those communications. What weight these communications should have is up to the trier of fact, but I can’t imagine what mental gymnastics one would have to do to claim they are not relevant to the matter at hand. It’s up to the accusers’ legal counsel to argue to the trier of fact that the fact that they initiated “positive” communicstion with him after the incidents in question should carry little weight. One way they could do that is by putting an expert on the stand who would testify that sexual assault victims often behave in that way.

    That being said, that Jian dude is absolute trash and a disgusting human being and I hope he gets what’s coming to him.

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      Rusty EyeBabyGotFront
      2/05/16 6:29pm

      From this bio piece on his defense lawyer, Marie Henein, it sounds like Ghomeshi hired the best. My guess is that she’s also billing him a large % of his net worth, too.

      http://torontolife.com/city/crime/mar...

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      TheGizmofromPizmoBabyGotFront
      2/05/16 7:10pm

      Isn’t it the difference between me hitting you and then you say ‘it’s alright’ and me asking you if I can hit you and you saying ‘it’s alright’. The first one is done without your consent the second one is done with consent. That is what the trial is, or at least should, be about.

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    jinniAnna Merlan
    2/05/16 2:37pm

    To make the trial even more bizarre, a 19-year-old man was arrested Friday morning outside the courthouse after screaming at and threatening reporters with an electric saw. A reporter tackled the man after seeing the weapon and held him until police arrived.

    Certain laws are different in Canada. Not that that has to do with anything, of course. Nothing at all. Totally irrelevant.

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      Chanting Tantrumjinni
      2/05/16 3:21pm

      I think i get what you’re trying to say here. and if it is...

      GIF
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      PersnicketyPantsjinni
      2/05/16 8:42pm

      Just another “Nice Guy” (TM).

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    secretagentmanAnna Merlan
    2/05/16 3:44pm

    Very smart lawyer. She doesn’t go near the actual allegations of assault, no mention on her part about denying the punching, slapping and hairpulling took place, but focusing on the credibility of the women. The sad part is, there’s no handbook on how to act after you’ve been assaulted by someone, so like some people in this thread, and on the street, find the behaviour odd, it shouldn’t take away the fact that the assault actually happened. Hopefully the judge will see the truth.

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      Lady Cannibal SharkAnna Merlan
      2/05/16 2:49pm

      i honestly don't know what to make of this. i know that victims in date rape situations often go on to continue having relationships with their attackers, but to flat out say that the ass kicking he gave you makes you want to fuck his brains out...what chance do these women have of getting a conviction against him now?

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        DulkyLady Cannibal Shark
        2/05/16 2:54pm

        The live tweets said the defense team looked very relaxed as they left the court. There’s no way Ghomeshi is convicted now.

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        VanessarefusestowritedownburnerkeyLady Cannibal Shark
        2/05/16 3:07pm

        I’m in the same boat. I fully believe Jian was capable of hurting these women and did, but these letters really do put a dent in their testimonies and to deny otherwise is foolish.

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      UrbanNunEnthusiastAnna Merlan
      2/05/16 3:37pm

      I feel like women understand this better than men because we’re more likely to have this happen via a male friend/acquaintance/boyfriend. It doesn’t really seem unusual, especially if you know your attacker and thought you were friends and/or lovers, to think to yourself “maybe it was a one-off, he’s still a good friend/boyfriend/acquaintance most of the time” if something like this happens, right? Most people would feel extremely confused (among other things) if they were treated like this by someone they love and trust and may react in ways that would be seen to the outer world as counter productive or self-destructive. Is this really such a mystery?

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        VeryVickyUrbanNunEnthusiast
        2/05/16 6:20pm

        Not a mystery when there is a loving relationship but I don’t even think these people were friends with benefits. The prosecution needs to bring an expert witness to explain this asap or this creep will walk.

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