It may be that there is a more delicious sight than a criminal defence lawyer in the box as a prosecution witness, but if so, there probably were few in courtroom 2-1 yesterday who could have said just what it was.
There was Edward J. Sapiano bounding into the room, file folder and small man-bag in hand, starting up the left-hand aisle that defence lawyers commonly use to get to their seats.
"Mr. Sapiano," said Mr. Justice Michael Dambrot of the Ontario Superior Court with a chortle, "you should know better than that."
And Mr. Sapiano chuckled, not by a country mile for the last time, turned back, headed to the right-hand aisle and replied, "Well, I always tell witnesses they're going to be nervous, Your Honour."
That a well-known defence lawyer, police critic and director of the Association in Defence of the Wrongly Convicted came to be called by a Crown attorney, in this case Henry Poon, is indeed a rare event, and one that might seem instinctively oxymoronic.
But, as will become clear, the truth is rather the opposite: Mr. Sapiano's appearance at the main Toronto courthouse yesterday was in fact evidence that there is almost nothing that the vigorous advocate won't do for his client even if it means, ugh, sleeping with the enemy -- that is, co-operating with the cops.
Mr. Sapiano was just a few hours later to visibly wince at that word -- his co-operation with the police when the lawyer last spring provided homicide squad officers with a videotaped statement.
"I'm smiling," Mr. Sapiano said of what had been a grimace-cum-weak-grin, "because I'm a little hesitant with the word 'co-operating.' . . . Many of my clients would not feel comfortable with the notion of me co-operating with the police."
In a nutshell, Mr. Sapiano was called because the aforementioned client, one Andrew Mark Martin, has been painted as an alternative suspect in the May 1, 2000, death of his girlfriend Patricia Bailey.
Mr. Sapiano was able to testify here only because Mr. Martin has waived solicitor-client privilege; it is only the client who can waive this sacrosanct privilege, not the lawyer.
Now on trial for first-degree murder in the 24-year-old's slaying is her cousin, Allan Dalzell.
Mr. Dalzell is pleading not guilty and it was his defence lawyer here, Steven Fishbayn, who suggested to Mr. Martin when he was testifying last week, that he was the real killer.
A key piece of Mr. Fishbayn's theory is that Mr. Martin didn't give Toronto Police a DNA sample when, during their investigation four years ago, they first asked. That, Mr. Fishbayn says, shows what in law is called "consciousness of guilt," and it was to defeat that argument that Mr. Sapiano's evidence was sought.
He told Mr. Poon that he, and he alone, was responsible for the delay in getting Mr. Martin's DNA. He ordered Mr. Martin not to talk to the police, he said, and offered to provide a voluntary sample only under certain conditions. When the police didn't agree to them, the result was that Mr. Martin's DNA was obtained only when the officers got a search warrant months later.
While all this is vitally important for Messrs. Fishbayn and Dalzell, what was as interesting in a broader sense was the glimpse into the thinking of a high-profile defence lawyer.
Mr. Sapiano, for instance, described his relationship with the investigating officers as downright hostile.
"It was adversarial, professional . . . like soldiers in the field shooting at one another when in the trenches. I see the homicide squad coming at my client with guns blazing."
He was equally forthright when in that videotaped interview, he told the officer in charge of the case that he could understand that by demanding the police assure him Mr. Martin was not a suspect before agreeing that he could hand over his DNA, he would have appeared not only unco-operative, but "downright obstructive."
At one point, when Mr. Fishbayn said that early on in the case, Mr. Sapiano had been baldly "trying to plug the holes" in Mr. Martin's alibi, Mr. Sapiano replied, "I'm leery of your phraseology."
"I'm using your phraseology," Mr. Fishbayn said mildly, referring to the transcript of the taped interview.
"Ha, ha," Mr. Sapiano said, then cried, not without admiration, "Touché!"
When Mr. Fishbayn suggested that the conditions proposed by Mr. Sapiano for the voluntary DNA sample were so onerous they rendered the offer "meaningless" and that it was but a smokescreen designed to make Mr. Martin appear co-operative, Mr. Sapiano snorted, "Absolutely not. That's not what was going on. . . . If that was a good tactic, I'd be telling you here today, I'd be boasting about it . . . but that would never happen on my watch . . . it's dangerous. You don't make a false offer of DNA."
As he told Mr. Poon earlier, before he offers up a client's DNA, Mr. Sapiano does his homework: "If there's any possibility the client is guilty, I don't want him giving DNA to the police."
As he said flatly in another exchange with Mr. Fishbayn, if a client voluntarily submits his DNA, "there's no taking it back . . . you can't be a little bit pregnant. You're either there, or you're not."
Mr. Sapiano made it clear that in his practice, he calls the shots.
"If someone comes to me and says the police want to talk about a homicide," he said, "I give the instructions. I have the expertise. I tell the client what to do, not the other way around."
In part, he admitted, this take-charge attitude is born of his concern for his own good name, or as he put it once, "I confess it's my own reputation" that would suffer if "a client says 'Oh yeah, here's my DNA and it matches.' I look bad."
Mr. Fishbayn promptly remarked, "Aside from noting that Mr. Sapiano said he confesses . . ."
Mr. Sapiano said that his clients generally make four key decisions: Who their lawyer is; whether they will plead guilty or not guilty; whether they will submit a DNA sample, and whether they will testify in their own defence.
"I make all others," he said cheerfully.
As he said once, "To the extent that I'm successful, it's because I'm a little different . . . I think outside the box. . . . Only the imagination is the limitation. I like to conduct my cases outside the box."
But yesterday, Mr. Sapiano was in the box.
He appeared to enjoy the experience too, flirting with the jurors ("I got a bit of an ego, ladies and gentlemen," he said at one point) and giving such long answers that once, Judge Dambrot cut him off with a gentle, "Mr. Sapiano, you don't get to speak. It's not the usual situation."
Nor was it, except that a defence lawyer, albeit in an unorthodox manner, was still going to bat for the one they all call, with affection, impatience, fury and much else, "My guy."