“… which is why we’d recommend the following, in no particular order….” And they listed the names of five criminal lawyers who were well known to me, followed by their expert analysis of each.
They were careful not to be unequivocal about anyone. It’s true that any one of those five people would have done an excellent job. It was September 2, and I was feeling capable of little more than breathing at that moment, and also maybe of drinking coffee. I have no recollection of how I responded to this telephone call. At some point I hung up.
The next few days were long and slow. Everything moved glacially in my brain, as if underwater, or like the dreams where you’re sprinting in quicksand. Each day that passed, I gathered a little more information about whom to retain. (On my behalf, Susan had retained Marie Henein as interim counsel, but all concerned understood that I’d need a little time to make a decision about who would be my lawyer beyond the interim stage.)
Other lawyers I would call for their counsel on counsel included criminal lawyers Peter Dotsikas, David Porter (a former colleague from McCarthy’s), and Alison Wheeler, a brilliant criminal lawyer with whom I’d clerked at the Supreme Court of Canada. She was a contemporary, but always a little on the scarier side of scary-smart. She’d also been mentored by Eddie Greenspan, Canada’s most famous living criminal lawyer, and Alison had worked with Marie Henein, who was on everyone’s shortlist.
Alison gave me good advice early on in my search: “Here’s what everyone accused of a crime should consider when choosing their lawyer. You need to get on with your life. You’re innocent, Michael, and you need to recover, get a job, be a husband, be a dad, live your life. You can’t be co–defence counsel on this case. You need to let go of the case. That means finding someone you trust to do more on your behalf than you could possibly do yourself.”
There was a consensus about Marie Henein, although not everyone put her at the top of their list. Some men found her aggression to be too aggressive. I’d experienced this benign sexism before. Aggressive men are tough, they’d say; aggressive women are “shrill.”
That initial decision of whom to retain took longer than it should have, but my brain wasn’t picking up much speed. I could digest a little information each day, but not much more. Near the end of that first week, David Porter was instrumental in talking me through all the factors at play in my case. He pulled over to the side of the road and gave me close to an hour on the phone, and had clearly put his mind to it in advance.
While I was making the decision, Marie continued to act as interim counsel. It could have been uncomfortable but she made it otherwise. When it came to making decisions about the case, or presenting the analysis, she was extremely direct. When it came to whom I should retain, she was gracious and patient.
In our first conversation, she said, as interim counsel: “I don’t need the file, Michael. You won’t hurt my feelings if you retain someone else. Just make a decision about who’s best for your case.”
“SO WHAT HAPPENED?” We’re on the top floor of my house. A few hours previous, I’d been in a cell at Toronto Police Service’s Traffic Division. Jordan Glick is at his laptop, sitting at my wife’s homeoffice desk. Marie is seated across from me.
I spoke for about an hour, and I’ve no recollection of any of it.
After we’d finished talking we went down the stairs. Following some preliminary talk about meeting the next day, Marie and Jordan left and went back to the office. In the car, she was quiet. Thinking loudly.
“What do you think?” he asked.
“Not sure yet.”
Something didn’t seem right to her. She’d heard the media reports, which had already found me guilty of the road-rage killing of a cyclist. Marie would hear her client out, of course, but she was used to clients having a warped sense of what had happened. They often were terrible witnesses of their own actions. Ideally, they are never called to the stand to testify. The mind plays tricks on people, constantly, especially amidst the chaos of an incident that ends in death.
Road rage, road rage, road rage. News of my release on conditions was leading the radio newscasts on their drive back to Marie’s office. The call-in shows were discussing road rage, some with a psychologist as the special guest, all speculating on what had happened during the 28 seconds—though no one knew yet that’s all it took.
When Marie was first telephoned by Susan, early on September 1, she hadn’t leapt to any conclusions about my actions. Keep in mind, the seasoned defence counsel does not start every case convinced of their client’s innocence. It’s not the point. The point is that defence counsel must represent their client, to the best of their ability, in defending the charges. Regardless of Marie’s personal judgment, she would represent me as best she could.
So if, in fact, the evidence had confirmed road rage, Marie’s job would have been to dismantle that evidence: exclude it, discredit it, contradict it, drown it, destroy it with advocacy and evidence to the contrary. Motions to throw out damning evidence, cross examinations to impeach witness testimony, defence experts throwing doubt on the prosecution’s case. That was totally up her alley.
But this case quickly appeared to her to have nothing to do with a road rage incident.
Firstly, the people claiming to be witnesses, who were interviewed by the media, weren’t describing the driver (me) yelling or shaking his fist or honking his horn. Secondly, while Marie didn’t know me personally, even the damning media reports admitted no history of my having anger issues. Lastly, her office was getting phone calls and emails from people, many directed to her through Andy Evangelista. People were calling about Darcy Sheppard. A picture was forming in Marie’s mind about the man who’d died. In her mind, that man was sounding less and less like a road-rage victim, and more and more like a road rager himself.
THE NEXT MORNING, September 2, the day after I was released, I took a taxi to Marie Henein’s office. I was about two hours late for the appointment. No idea why.
I stood outside her building, looking at the address on the door, and looking down at the note I’d fished out of my pocket. It was one and the same. I recall the day as raining, pouring, but when I double-checked the weather for September 2, 2009, it was sunny and 20˚C.
As I stood there on the sidewalk, I overheard two people having a conversation.
“No, I thought that he was with his wife—” “Yes, his wife. That’s what I said. But the courier didn’t hit the wife. Where’d you hear that?”
I followed them. They were talking about me, and my case, unaware that I was in earshot.
“What’s going to happen, you think? … When will it go to trial?”
“Who knows? Feel sorry for the …”
I stopped. Not sure who was the object of his sympathy. As I walked the half block back to Marie’s building, someone spotted me from across the street. The person pointed straight at me, elbowing their friend, all in slow motion, it seemed:
“There’sssssss … Michaelllllll … Bryyyyyaant …”
I scurried into the building and up the stairs to Marie’s office.
Walking up the stairs, I couldn’t find the offices at first. Then I poked my head into the reception area, where I was waved in.
“Hi. I’m Michael Bryant, here for Marie Henein.”
A professional-looking receptionist blinked. In front of her was a Toronto Star, the entire front page of which was completely devoted to “Bryant’s Deadly Duel,” as the headline read. Half the front page was the face standing before the receptionist. She blinked again.
She firmly took my coat.
“Take a seat. Coffee?”
I accepted and sat down in the waiting room. I’d never done that before, waited for a lawyer. I’d never been a client before. I stared at the table covered with magazines, but the words made little sense to me.
Marie’s office is in downtown Toronto, broadly speaking, as nondescript as one would expect of a defence counsel’s office. Criminal defence practices ar
e lean operations. Most are sole practitioners. Most clients can’t or won’t pay their full bill. For almost all, and for most of their career, the earnings pale in comparison to high-priced corporate lawyers (boardroom) or civil litigators (courtroom). Moreover, people allegedly involved in crimes are not infrequently the targets of other crimes. A criminal law practice may not be at a secret location, but neither is it Rockefeller Center.
To the right of the reception area was a large boardroom. The doors were usually closed. To the left was a hallway. At one end was a coffee room, washrooms, and some storage rooms. At the other end of the hallway was a larger bullpen of secretary work stations, a photocopier, and huge filing cabinets. Along the wall were offices: Marie’s, her associates’, and a few offices rented by sole practitioners with their own practices separate from Marie’s.
The lawyers who worked on my file, as Marie’s “associates” or juniors, were all young, serious, smart, and anemic from the workload. Margaret Bojanowska, Matthew Gourlay, Jordan Glick, Danielle Robitaille. Margaret was the second-in-command.
As I waited with my coffee, staring at the hardwood floors, the sound of expensive heels on hardwood echoed off the walls, building louder and louder, until Marie appeared in the reception area, slightly hunched, unsmiling, eyes peering forward, as if she were looking over reading glasses that weren’t there. A stylish, expensive suit was on display, and again the shoes of a countess. Countess Henein, at your service.
“You’ve got coffee. You found the office. You’re late but that’s okay because you’re all dumb from what happened. Would you prefer to talk in the boardroom or my office?”
“Ummm.”
“Follow me.”
We went to her office. There were two white chairs, but only one didn’t have books on it. A gargantuan Apple computer sat atop her desk, along with a few file folders, and some notes. She smiled and then relaxed, asking me, quite carefully, how I was doing.
The next few days, that first week, I was in her office a few times but not much could be done until I decided whom I was going to retain. When I finally made the decision to retain Marie, I called to let her know.
“Good,” she said, no more or less excited to represent me than any other client. “Can you come into the office tomorrow? I want to go through what we’ve got so far.”
As it turned out, what she’d collected “so far” was nothing less than a bucket of bombshells.
ON THE MORNING OF September 2, less than 24 hours after Marie had been retained on an interim basis, she arrived at the office to an overflowing voicemail box. It wasn’t yet in the media that she was interim counsel, nor did we want that to become public. If I’d ended up retaining someone else, it would have been bad form to have identified her in any way as an also-ran.
Meanwhile, my buddy Andy Evangelista had been fielding calls non-stop since he’d landed himself on the front page of every newspaper in Canada. Andrew was there beside me when I’d been released. The media identified him, incorrectly, as one of my lawyers. So he received an avalanche of calls and emails, some helpful, some not, in regard to the case. It meant that he spent a good deal of time sifting through emails from crackpots and stretcher bearers alike.
Andy quickly began working with Marie.
“I’m getting all these calls from people, and a tonne of emails, all saying that they’ve been attacked by this Darcy Sheppard guy,” Andy told Marie.
Both Andy and Marie, experienced lawyers in their own fields, were rightly skeptical about such callers. Some people might be sharing their delusional fantasies, others their tales of woe that involved a cyclist, but not necessarily the cyclist Darcy Sheppard. Police are very familiar with this phenomenon, wherein callers offer up information that turns out to be useless to their investigation.
However, Marie took nothing for granted, and always checked her own assumptions. She told Andy that they had to take all of these people seriously. Marie and her colleagues in the firm would weed through it all, even if it was a fruitless exercise. Needle in a haystack, Marie thought at the time.
The volume of calls and emails, however, was unlike anything Marie had experienced. Andrew would pass along messages to Marie, and where necessary refer them to Marie directly. She’d sit at her desk with her associates across from her, taking notes, reviewing the transcript of the voicemail or the email. Or they’d go over notes of a conversation she’d taken or those taken by another lawyer. On the desk was her massive Apple iMac, a pile of transcripts, and a notebook. Much coffee was consumed.
Again and again, people were telling stories about a cyclist who’d attacked them in their car, in a fashion remarkably like that described in the media as what had occurred during the 28 seconds. This didn’t shock Marie so much—copycat stories, she thought.
One of those callers had the initials B.S., which led to a few guffaws.
This guy had reported that in August he was driving down Bloor Street—less than a month before my 28 seconds, on the very road where it had happened—and saw a cyclist ahead of him weaving in and out of different lanes. Then, at the light, the driver had been blocked by the cyclist while waiting in the passing lane. There was an empty right lane, plus also maybe an empty bike lane at that part of Bloor Street, but this cyclist was using the left lane, without any intention of turning left. So the driver tapped on his horn, to let the cyclist know there was a car behind him. No response. Fine, the driver thought, and drove past the cyclist on the left side as there was no traffic.
The driver continued down the road, stopping at a red light, not giving the cyclist a second thought. Suddenly Mr. B.S.’s window was smacked by the cyclist, and—
“Hold it,” Marie said. “Did he say that the cyclist had been weaving in and out of different lanes?”
Pages were flipped backwards.
“Yes,” Margaret responded. “He said he could see the cyclist up ahead, weaving in and out of different lanes, near Bloor and Lansdowne.”
Marie stared at her associates. Their eyebrows went up, as if to say: “So what?”
“Bryant said that Sheppard was weaving in and out of the lanes, from the top of the street to the bottom, dodging traffic heading in both directions. That’s what Bryant told us, several times,” Marie said. “But there’s no reference in the media reports of Darcy Sheppard weaving in and out of traffic in front of Michael.”
Jordan started a search on his laptop to double-check. Nothing in the mainstream media, or the blogs, or anywhere referring to this remarkable feat that I’d seen, of Sheppard weaving in and out of traffic.
“Maybe a coincidence,” Marie said. “Keep going.”
“Okay,” Margaret continued reading from the voicemail transcript. “The caller said that the cyclist came up to his car on the left-hand side and slapped his window. The cyclist was—”
“Wait,” Marie said. “Michael said that Darcy Sheppard took a swing at him, approaching from the driver’s side. Michael’s convertible top was down and window was down. Sounds like this guy’s slap to the driver’s side window.”
“Nothing,” Jordan said, having already looked it up in the media search.
Nothing about Sheppard taking a swing at me was in the media, but I’d mentioned it in my 911 call, and also to Marie and her team.
“Keep going,” Marie said, her voice betraying nothing.
“Cyclist was angry, inches from the window … Spitting … Losing his mind.”
Marie leaned forward for the first time that day, her hands on the desk: “Did the caller say that the cyclist was ‘losing his mind’?”
“Right from the transcript. He said that he was, quote, ‘losing his mind.’”
They all looked at each other. If I’d said that same thing once, I’d said it a dozen times to them: Darcy Sheppard seemed “psychotic” during the 28 seconds, like he’d lost his mind.
But it got even more familiar. Mr. B.S. drove away from the cyclist—who, the driver insisted, looked like the man identified in
the newspaper as Darcy Sheppard. Blocks down the road, the cyclist came up on his left and struck his left-side rearview mirror, dislodging it from its housing. Swerving to the right down Brunswick Avenue, the driver called 911 and told the dispatcher that a cyclist had knocked the mirror off his car. During the call, he watched as Sheppard straddled his bike, just as I’d seen him straddle his bike during the 28 seconds.
As the 911 call confirmed, just as the driver was explaining his location to the dispatcher, the cyclist raced toward the vehicle and threw a brick through the driver’s side rear passenger window. The dispatcher could hear the sound of impact. The driver would retell all this to police officers, who obviously took extensive notes, and he kept the bill as proof of body-shop repair that was needed.
Marie has a voice that doesn’t seem loud, but is always very, very clear. She doesn’t raise it, because she doesn’t have to.
“Get the repair bill, get the 911 records, and get me this guy’s address. We’re going to his house. Right now.”
It was Marie’s practice to never send private detectives or clerks or stenographers to conduct an interview with a witness. She always did it herself, or had a trusted junior do the interview, but only after having seen Marie do it about a hundred times. They recorded it, and secured a signature from the person swearing to its accuracy, as soon as possible. And it was always done immediately, as soon as they learned of it. Otherwise, memories fade, or people move, or lawyers plumb forget to do it in a timely manner.
When Marie was able to interview this witness, Mr. B.S., she asked him if he recognized the photo of Darcy Sheppard that had been in the media, a copy of which Marie had with her.
There was no hesitation. He’d been attacked by Darcy Sheppard.
THE VOLUME OF CALLS and emails was staggering to Marie. After the first night, she hired someone to remain in the office, through the night, to take messages and get as much information as they could, from dusk ’til dawn.
Marie also completely revamped her law firm’s computer security. Wi-Fi was out. Everything was hard-wired, and a big investment was made in new security to avoid any possibility of the files being hacked. A pseudonym was used for my file. If anyone did hack into the system, which would seem impossible with a firewall around all her files and no Wi-Fi, they’d never find a file with the name Michael Bryant.
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