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A decade of frustration spilled over at a judge's misconduct hearing Thursday, as a senior Crown attorney told of being personally and professionally shattered when Ontario Superior Court Judge Paul Cosgrove turned a murder trial into an investigation of a “giant, so-called conspiracy” by state officials.
Curt Flanagan, chief Crown attorney for a region around Brockville, said that Judge Cosgrove acted on every innuendo and “scurrilous, malicious” accusation of wrongdoing hatched by Kevin Murphy – defence counsel to accused killer Julia Elliott.
“It was an atrocious experience,” Mr. Flanagan said in a frustrated rush of words. “It was a shattering experience to be attacked professionally without any evidence. The most important thing to a lawyer is his credibility and integrity. With respect to a Crown attorney, that is extremely important.”
Mr. Flanagan's impassioned account came on the last day of a Canadian Judicial Counsel inquiry into whether Judge Cosgrove was biased against the Crown and has lost his ability to function as a judge.
Late today, B.C. Chief Justice Lance Finch – chair of the disciplinary panel – said it will reserve its decision for an indefinite period.
In a closing argument, Chris Paliare – a lawyer for Judge Cosgrove – said that his client has flatly admitted to making numerous errors and acting “inappropriately.”
Whether those actions are tantamount to actual judicial misconduct is for the CJC to decide, Mr. Paliare said.
Earl Cherniak, independent counsel to the CJC, told the panel that he viewed Judge Cosgrove's apology earlier this week as an implicit admission of misconduct.
“I simply do not accept that Mr. Paliare said yesterday that the statement was not an admission of judicial misconduct,” he said. “I know the word was not there, but I took it that way, and I know that Mr. Paliare knows I took it that way.”
Mr. Flanagan testified that it was extremely painful for he and other Crowns and police when Judge Cosgrove ultimately found them to have committed 150 breaches of Ms. Elliott's Charter rights – including numerous acts of perjury, fabricating evidence, obstructing justice and conspiracy.
New to Brockville, Mr. Flanagan added, his credibility was severely damaged and his family suffered great stress and embarrassment.
“In a small town, everybody knows who you are,” he said. “People know your kids as the Crown attorney's kids.”
“When a trial judge is making findings against a Crown attorney in relation to a so-called giant conspiracy, it has a tremendous effect,” Mr. Flanagan said. “It was astonishing. I lost sleep over it. I was stressed by it. This wasn't a situation that happened in a day. This was over an extended period of time.”
He said that friends and relatives could not comprehend what was going on, and a Crown colleague – Alan Findlay – underwent a permanent change in his personality as a result of the ongoing trauma.
“I can tell you categorically that man changed after that trial,” Mr. Flanagan said. “He was like someone who had been kicked in the stomach.”
The effect on the reputation of the justice system must surely be just as damaging, Mr. Flanagan added: “Everybody was walking on eggshells.”
The inquisition took place during the two-year trial, and the judicial orders that Judge Cosgrove kept spinning off, prevented Crown prosecutors from communicating to one another about evidence and strategies, he said.
“It completely hamstrung me as Crown counsel to be able to do anything,” he said.
Another witness Thursday, Stephen Foster – the son of murder victim Lawrence Foster – said that he felt “abandoned” by Judge Cosgrove when he testified at Ms. Elliott's trial.
Mr. Foster said that defence counsel Kevin Murphy accosted him in cross-examination is a manner that shocked him and made him feel that he was the one who was on trial.
“I was stunned, quite frankly,” he said. “I was in shock anyway, following the death of my father.”
Mr. Foster said he was even more aghast – and frightened – after an incident in the courthouse cafeteria resulted in his being threatened with a contempt citation by Judge Cosgrove.
The incident occurred in the coffee line-up, when Mr. Foster said that a “grudge” that had been building up in him led him to ask Mr. Murphy: “Have you always been such a pain in the ass?”
Mr. Foster recalled that Mr. Murphy flew into a rage and tried to elicit people who were present to come to his side. Shortly afterward, Mr. Foster said, Mr. Murphy raised it in the courtroom and asked Judge Cosgrove to take action against Mr. Foster.
“Here I was, at the murder trial of my father, and I was going to go to jail before the murderer.”
Mr. Foster said that his family was horrified when Judge Cosgrove stayed the murder charge, and Ms. Elliott seized the chance to flee the country.
“I think the Crown did the best it could,” he said. “In the end, we were left deflated; in a hopeless situation where she had fled and there was no chance of getting her back.”
Several years later, after the Ontario Court of Appeal ordered a retrial, Ms. Elliott was extradited from Bermuda and pleaded guilty to a reduced charge of manslaughter.
Another witness, lawyer David Humphrey – who was one of a team of contract Crowns retained to fight a defence abuse-of-process motion midway through the trial – testified that he took careful precautions to try to prevent Ms. Elliott's leaving the country on the day she was freed by Judge Cosgrove.
An immigration official was in the courtroom, prepared to serve immigration papers that would result in her apprehension. Mr. Humphrey said that he intended to speed through a notice of appeal of the stay.
Instead, he said, Judge Cosgrove foiled the plan by turning aside the immigration officials request and permitting Ms. Elliott to go free. A police surveillance team lost track of her after she went to her lawyer's office. She fled through a back exit and left Canada.
“I was essentially cut off,” Mr. Humphrey said. “… was told that we had essentially lost Ms. Elliott.”
Mr. Humphey also said that he was flabbergasted recently to learn that the Public Prosecutions Service had hired Mr. Murphy as a prosecutor. “To my astonishment, that is what I heard the last time I was in Ottawa,” he said.
Thursday's other witness – retired Ontario Provincial Police Detective-Inspector Glen Bowmaster – said that his officers were afraid to testify at the inquiry because word had spread about the baseless allegations that were being made to police and Crowns.
“The officers were very apprehensive,” he said. The idea of potentially being cited for contempt of court and sent to jail was particularly terrifying for them, he said.
