My new favourite song is by Gord Downie of the Tragically Hip, found on his recent solo album. The song is called The Hard Canadian, and though it’s about a man whose heart, “grown thorny with sin,” has made him cruel, there’s something about it that makes me nostalgic.
As the husband of one of my friends howled recently after a bunch of us saw The Year of Magical Thinking, based on Joan Didion’s wonderful memoir about grieving, “Why does everybody feel the need to express everything now?”
I share Alex’s regret for an era, now sadly long gone, when people occasionally suffered in silence, sucked up the slings and arrows of life and generally just stayed calm and carried on.
What makes me think of the song now is the current hullabaloo about an assistant Crown attorney, one Paul Alexander, who this week caused a mistrial in a Toronto murder case by “making strange faces” from the body of the court.
It’s a bit of a convoluted tale.
Mr. Alexander was not the Crown handling the retrial of Erika Mendieta, the 34-year-old mother of five who is charged with second-degree murder in the beating death, now seven years ago, of her three-year-old daughter, Emmily Lucas.
However, he was co-counsel with prosecutor Allison MacPherson, who is very well regarded, for Ms. Mendieta’s first murder trial, which also ended in a mistrial a year ago when that jury, faced with a witness-box confession by an ex-boyfriend (who happily was testifying under the protection of the Canada Evidence Act, meaning that while his confession could be of use to Ms. Mendieta, it couldn’t damage or be used against him), couldn’t reach a unanimous verdict.
The second trial, this time with Ms. MacPherson prosecuting, started last month and was last week humming merrily along when Ms. Mendieta again was testifying in her own defence, admitting she had physically disciplined the little girl, but denying that she killed her.
Alas, sitting near the front of the courtroom in the public gallery was a blond man – this turned out to be Mr. Alexander, though the jurors didn’t know it – who was rolling his eyes and making faces. They were so unsettled they sent a note to Ontario Superior Court Justice Nola Garton.
“We find him very distracting,” the note said, “and he is making strange faces all the time. We feel very uncomfortable with him.”
Judge Garton disclosed the note to the lawyers, and when Ms. Mendieta’s lawyers brought a motion for mistrial, Ms. Mendieta then testified, in the absence of the jury, that she too had noticed Mr. Alexander’s facial gyrations. But she of course knew full well who he was and so found his presence intimidating, and said it made her nervous and even changed her testimony.
The judge in short order dismissed the jurors and called a mistrial, though defence lawyers have asked that she consider continuing with the case on a judge-alone basis. The judge and lawyers will return to court Thursday to hash that possibility out.
Now, it may be that Judge Garton had, as she said, no choice, though I can think of a couple of her brothers on the bench who might have contented themselves with reaming out Mr. Alexander, offering Ms. Mendieta another go in the stand, sternly cautioning the jurors, and pressing on.
But let’s accept, for the sake of this discussion, that the judge had no other option.
Now, it is inarguable Mr. Alexander clearly made a monumental error of judgment: What was this doofus thinking, showing up to stare down an accused he had unsuccessfully prosecuted? He’s an assistant Crown expected to act ethically, not some thug from a street gang.
But holy Mary mother of God, while his behaviour was moronic, his sin was venial, not mortal.
You think he’s the first lawyer to shamelessly mug for a jury? I have seen defence counsel roll their eyes and groan while the prosecutor is on his feet, and one of the best guys in the business is an overt flirt with jurors and public gallery both – it’s just how he rolls.
The criminal courtroom is a theatre, sometimes of the absurd, and most juries realize pretty damn quickly what judges ought to know with every fibre of their being – everyone wearing a robe wants something from them, and lawyers on both sides, within the boundaries of their different jobs, are advocates.
As for the jurors, delicate flowers, who were so “uncomfortable” with Mr. Alexander’s facial gymnastics – good Lord, they were hearing the details of a little girl, not even three, who was allegedly murdered by someone. Ladies and gentleman, be upset by the details of Emmily’s suffering; be uneasy with the pictures of her cold still body, if you must. But could you not have grown a spine, ignored the clown in the gallery, and paid attention to the witness?
Mr. Downie’s hard Canadian, alas, was nowhere to be found in that bloody courtroom.
