02.03.2016 08:24 AM

Judge, jury and Twitter

Have you ever worked on a trial, from start to finish? I have.  When I did so, I was always amazed about how much information – how much detail – I would miss by simply stepping out of the courtroom to go to the bathroom.

Have you ever been a court reporter, and tried to cover a trial? I have.  I was the courts guy for the Ottawa Citizen, and I was always terrified about how much information – how much evidence – I would miss by simply doing my job, flitting from one courtroom to the next, trying to cobble together a good story without errors.

Thus, the Ghomeshi trial (or the Bosma trial, or any other trial that attracts a lot of media attention): with the exception of a few dozen other people, who are there every day, none of us – none of us – are there to observe the proceedings, to hear and see the evidence.

This is important, because – since these two trials kicked off this week – I have seen too many otherwise-sensible folks lose their minds on social media, and appoint themselves the role of judge, jury and executioner.  For reasons I do not fully comprehend, they think they have superior insight into the accused, the witnesses, the evidence and the law – simply by peering periodically at a tiny screen, filled as it is with 140 characters.

They don’t.  They can’t.  Facebook – and Twitter in particular – facilitate a sort-of mob mentality online, one in which people with no understanding whatsoever of the issues/evidence/law decide whether someone is guilty/culpable or not. It’s like The Ox Bow Incident, except with smartphones (watch that movie – it’s why I went to law school).

Here’s a cautionary report from the U.K.:

The rise of social media has meant that conversations about criminal cases, once had down the pub or over the garden fence, are now instantly published online – and can be shared with thousands, BBC legal correspondent Clive Coleman says.

Instant publication on the internet can go viral at an astonishing rate but so too can the message that the criminal and civil law applies to it as much as to a considered newspaper article. Education on the law of contempt is likely to spread very rapidly online.

But Facebook and Twitter are publications subject to the same laws that in practice used to apply only to the mainstream media. Anyone commenting about a case or defendant in a way that could prejudice a trial could be prosecuted for contempt and imprisoned.

There, the British Attorney General has starting publishing advisories to the general public – advisories that previously only went to accredited media – about how to avoid being jailed for contempt for something someone posted online about a trial.

The same sort of conclusions are being reached in Canada, particularly after the notorious “Killer Colonel” case:

The usually media-shy lawyer [Michael Edelson], whose Ottawa firm has represented many high-profile clients, said he’s gone public with his views because the issue is too important to ignore.

Edelson said he’d like to see a forum where senior journalists, judges and lawyers could get together and “throw around ideas” about whether social media tools should be controlled inside the courtroom.

The context of what’s being heard in court is often lost in Twitter posts, which are limited to 140 characters each, he said.

“The public interest is not served by where they don’t properly understand court proceedings and they don’t understand why a certain verdict or certain sentence emanates from the court, because they haven’t been given enough information to make a decision for themselves,” Edelson said.

“And certainly, getting 140 characters doesn’t assist you in making a decision whether or not the judge got it right or lawyers were making silly submissions or whatever the case may be.”

Which brings us to today, and to the shredding of the first complainant in the Ghomeshi trial. There can be no doubt – as seen here and here and here and here – that she has handed the prosecution a devastating setback, one that clearly creates lots of questions about the alleged offence as it relates to her. She did that – not the defendant’s (very capable) lawyer.

Those of you who are getting upset reading Twitter accounts of the trial of the former CBC luminary – and expressing your feelings online – need to please take a step back, and recall those hoary old concepts you’d like to apply to you, should you ever have the misfortune to get in big trouble – you know, innocent before proven guilty, vigorous defence, guilty beyond a reasonable doubt, etc. (And please don’t lump me in with the misogynistic scum who are delighting in how the Ghomeshi trial has gone so far. Personally, I usually favour regarding sexual assault as a capital offence. I’m not exaggerating, either.)

Months ago, a lawyer who knew more about Jian Ghomeshi’s trial told me he was likely going to walk. “The charges were laid in an environment of total media and social media hysteria,” this lawyer said. “The evidence just isn’t there.”

This week, the evidence certainly didn’t seem to be there in R. v. Ghomeshi.

But then again, I haven’t been in that Toronto courtroom every single day. So I don’t know.

Do you?


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    Houland Wolfe says:

    Just as in the Forcillo trial, where video evidence out=weighed the testimony of fellow police officers, perhaps video coverage of the Ghomeshi trial would trump Twitter postings. Let’s televise the proceedings and make up our own minds


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    Peter says:

    This isn’t only true about trials, it’s also true about judgments (Elliot) and police/Crown investigations (Parsons).

    Remember those old movies where howling mobs gathered outside a Western or Southern courtroom or sheriff’s office howling for the head of some accused or prisoner in the name of “justice” and intimidating the authorities or jurors? They’re back!!

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      Al in Cranbrook says:

      Exactly, Peter!

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    gyor says:

    I’m neither delighted or offended by how things are going, I’m content to observe and withhold judgement till its all over.

    But I don’t support capital punishment, its murder, just because it has state sanction doesn’t mean its not murder.

    Also some people won’t come forward if they’ve been raped if its a capital crime, because they won’t want they’re rapist to die, the punishment doesn’t fit the crime, so more rapists will get away with it.

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    smelter rat says:

    This biggest travesty with the Ghomeshi trial is that he’s not the one on trial.

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      Sm says:

      Have to agree with smelter rat. I have had to testify against a person who assaulted me, and if I didn’t keep telling myself that I was doing it in hopes of protecting others in the future, I would have just gone and jumped in the river. It’s like being assaulted all over again, only with a room full of people watching and doing nothing.

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        Steve T says:

        But what is the alternative? Allowing our justice system to operate by accusation alone? What happened to innocent until proven guilty? (with the emphasis on proof).

        Are you that comfortable that no one will ever make up a grievance, or exaggerate one, because they have an axe to grind? Not saying that’s what happened with Ghomeshi, but our justice system is set up to be fair – not to satisfy the torch-burning mobs,

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      gyor says:

      That’s BS, how exactly would you defend him if you were his defence lawyer?

      There is no physical evidence one way or the other, no other witnesses to my knowledge, its just her word against his for this incident, so it comes down to which of the two is the more credible person.

      So all the lawyer did is point out that she lied about her story and provided evidence to back that up, you know DOING HER JOB, yet she gets made out to be a bully, that’s not fair.

      Its like you people have decided he’s already decided he’s guilty and you think his lawyer she just give up and not provide the best legal defence she can.

      The witness/accused might feel uncomfortable and be embarrassed for being caught out in a lie about not contacting him after the alleged incident, but Ghomeshi has had it much worse since the accusations surfaced, he’s lost his jobs, had his reputation destroyed, his personal life exposed, and is potentially facing a prison sentance, so you’ll have to excuse if I don’t think his lawyer should lawyer should roll over and play dead just because the accuser/witness feels uncomfortable when its pointed out with evidence that she lied during her testimony, given that the entire future and freedom of her client rests in his lawyer’e hands.

      His lawyer has an obligation to her client to do whatever she has to do within legal bounds to prove her clients innocence which by defination means proving those accusing him are lying about it.

      This is not a case of mistaken identity, either Ghomeshi is lying or his accusers are, and if his accusers are lying then they should be held to account just as much as Ghomeshi if he’s guilty.

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    Jack D says:

    The general public doesn’t know much of the information behind the Ghomeshi trial, and nor should it. Just because he’s a “public figure”, that shouldn’t warrant a public trial on the TV screens across Canada. Unless the prosecutor can prove that what Jian did was rape then the entire trial is taking place within a grey area of what consensual rough sex means in the context of our judicial system. My head spins at thought of what arguments and rebuttals the lawyers will have to prepare to make their respective cases. Nonetheless, this is a matter that needs to be borne out in the court room because public opinion is irrelevant in this private matter.

    With regards to the Bosma story, this scares the shit out of me. I recently sold a vehicle through Kijiji and went for a test drive or two with perspective buyers. While I went prepared (either taking someone along with me, notifying a family member and even arming my-self with a knife) it still disturbs me to think that there are people out there who seek to carry out what the perpetrators did in this case. For the sake of family, I really hope we get to a conclusion here where justice is aptly served. I also hope this will lead to people being more cautious and for safety measures becoming more commonplace in these situations.

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    e.a.f. says:

    Twitter is for twits, if they consider it meaningful dialogue. Its good for notifying people regarding meetings or answering brief questions, but as a method for dealing with series stuff, not so much.

    Hearing bits of the /G. trial, I’m not surprised about how its turning with the first witness.

    You are so correct about “innocent until proven guilty”. it used to be trial by media, not its worse, trial by twitter. Not a pleasant thought.

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      Peter says:

      Twitter is for twits

      Heh, good one, but would that were the problem. I think a more accurate description would be that Twitter creates twits, just as Facebook creates banal narcissists Or maybe they just bring out the twits and banal narcissists that reside deep down in all of us. Either way, they are changing public discourse and not for the better. Unfortunately we still seem to be still in the throws of advertising pabulum about how they promote communication, public debate and “the exchange of ideas”. Plus there seems to be a lot of people (including almost all the young) who go into debilitating withdrawal if they are cut off from them.

      Is there anyone here willing to say he/she changed his/her view on an issue or even learned something important because of something they read on Twitter?

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        Eric Weiss says:

        Social media doesn’t create twits or narcissists. It just lets them reveal their true nature to the world.

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          Peter says:

          I don’t mean that social media somehow magically alters our personalities. But for that part of it that deals with public issues and debates, there is a clear dynamic that pulls the participants to stridency and invective and away from nuanced debate, not to mention a pervasive sense of self-importance and self-proclaimed competency. The unlimited, unmoderated back and forth raises the temperature and validates Godwin’s Law. It’s made me understand why Oxford debates, trials and Parliament are all tightly moderated by third parties enforcing rules. The purpose is not just to control the quality of argument, they keep people from drawing swords.

          As to Facebook, if it didn’t exist, do you think there would be just as many people yearning to share the details of the fantastic breakfast they just ate?

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        smelter rat says:

        You must have been shattered when they switched from silent movies to talkies.

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    Pierre A. says:

    I have also covered trials and the court too for my newspaper (Le Soleil).
    I agree on some things and disagree on others. People rely on Twittter (or Facebook, but for live coverage, twitter mostly) because they simply don’t have the choice. In today’s world, we should have more information from the court than we presently have.
    The funny thing is that the reason given is to protect the judiciary process. But the result is that a misinformed public has more chances to go get things wrong and freak out even more.
    Also, when you mention the 140 cars limit, remember that reporters using twitter will publish tons of tweets, they’re just stuck doing it at 140 cars a shot.
    That being said, even with more information, people will still rush to judgment. Such is the nature of Facebook and Twitter, aka people, that changing one’s preconceived idea is mostly not going to happen.

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    Wayne says:

    Somewhere Mike Duffy has given Warren’s post a “+1”.

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    Russ says:

    Twitter is the modern day version of a headline – often there is a link to an article or paper with more in depth thought – Unfortunately, many just skim the headlines without reading the full article for context and details. It was a 19th century politician (whose name escapes me) who said “If I could control the headlines, I could control the world”

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    Derek Pearce says:

    The feeling among my own social group of friends is that he won’t be found legally responsible and will walk. But we know he sure is morally responsible and better watch his step with women from now on. Perhaps this ordeal will teach him the concept of consent. Not guilty legally, fine. But what a creep. Same with Cosby. A group of women don’t just decide out of the blue to gang up on a random celebrity.

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    Jack D says:

    I don’t know if anyones keeping up with the Ghomeshi trial right now but the defence lawyer is destroying the prosecutor’s case by poking holes right through each witnesses’ story.

    I wasn’t expecting this trial to be interesting but Ghomeshi’s lawyer is tearing the trial up with those damning emails.

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