“I thought everything I tell you is privileged.” Her voice is shaky.
“I dare not repeat it unless you waive confidentiality. And we have to talk about that because I cannot ethically and in good conscience serve you as counsel knowing a juror has flat out made up her mind without judging the evidence.”
Rivie stares glumly outside, as the police wrap things up and the paint crew erases the “commonist jew” scrawl. The crowd slowly disperses. “Doc warned me not to talk to you. That didn’t make sense. At the time.”
“Helmut was wrong. Rivie, there are lawyers of ill repute who might abandon ethics over this issue. They might gamble that the truth wouldn’t come to light, and risk disbarment. But truth has an oddly insistent way of breaking through. People talk. They share confidences with family, close friends, lovers, clergy, doctors. Who else did you talk to besides Helmut?”
“Um, Lucy, but she . . .”
“Right, despite Doc’s warning, and doubtless you passed on a similar warning to Lucy. Which brings to mind a favourite adage: ‘If you can’t keep a secret don’t expect anyone else to keep it for you.’ Tongues wag, all the more when loosened by drink and drugs.”
“Lucy and I were totally straight, Arthur.”
“Not suggesting otherwise. But you can’t count on Ms. Lee-Yeung being circumspect, especially if she’s as unstable as she seems. A friend with a Twitter account, a leak to the press. Vengeful, disappointed in love, she accuses you of seeking her out. It doesn’t end there. Security cameras and hidden listening devices are fundamental elements of the new society.”
“Okay, but for the record, I didn’t see any security cams outside.”
“Inside Montreal Bagels?”
“I didn’t . . . no, I don’t know.”
“Who else was in the line to buy bagels at that bakery? Maybe an undercover officer tailing you or Abbie?”
“Then they would know I refused to be compromised.”
“They would also know you kept silent about her approach. You would be seen as deceitful for not mentioning that a juror has broken her oath of neutrality. You will have lost all the honour you have gained during this trial.”
Rivie sits on the floor, head bowed, trying to hide tears. “Okay, whatever. Tell me what I have to do.”
“Release me from the bonds of privilege and silence. A written statement will be necessary. Perhaps an affidavit. I will talk to Nancy, then Azra. Today. No time can be lost.”
“And then?”
“Then we meet in closed court with Justice Donahue. Her options are narrow. She can dismiss Ms. Lee-Yeung from the jury and order the trial proceed with the eleven others. Or she could, conceivably, order a mistrial. I will do what I can. I’m sorry.”
“Me too. Because we’re screwed.”
3
Monday, June 3
It is half past nine and they’re in a small chambers court on the third floor: the judge, the clerk, the Official Court Reporter, the five lawyers. The room is locked, and Arthur is on his feet.
“Ms. Levitsky refused to speak with her other than to warn her not to communicate further with her. That’s in her sworn affidavit. She reported the matter to me. She waived privilege. She did all the right things.”
“For a change,” says Justice Donahue, who is taking this matter too lightly. Khan and his cohorts seem amused too. Nancy still looks bagged after yesterday’s long, loud rant when she learned of the bagel shop encounter.
Arthur insists Rivie’s defence is prejudiced if the trial proceeds with eleven jurors. He toils on about the fundamental right to be tried by twelve peers, about the unfairness of Rivie Levitsky being deprived of a sympathetic juror, however misguided.
Donahue gives no indication she’s taking this in. She looks up from her Criminal Code. “A jury is properly constituted as long as its numbers don’t dip under ten. But you’re saying, Mr. Beauchamp, that I should override that rule and declare a mistrial.”
“Your Ladyship sums up my motion with admirable succinctness.”
“Seriously? At this eleventh hour? After all the evidence is in, after three weeks of testimony from a multitude of witnesses. Distinguished experts, many from far abroad, who gave up their time. Also wasted, Mr. Beauchamp, would be the efforts of counsel, and your own skilled advocacy. And were I to succumb to your entreaties, the entire exercise would have to be repeated, clogging court calendars. Let us pity the poor taxpayer.”
“Ought justice to be measured in dollars, M’Lady?”
“Motion denied.” She makes a sorrowful face. “Now I shall have to explain matters to this young woman.” To Miss Pucket: “Please fetch her from the jurors’ lounge.”
* * *
On their way up the escalator, Khan offers Arthur solace: “Too bad — that girl may have been your best hope. Tragic for her too, though we’re not preferring any charges.”
Arthur asks Khan how his mother fares.
“She’s comfortable. Alert. She’s following our little case, fascinated to know how it will turn out. Curious about you, actually. They say it’s a matter of days. But they keep saying that.”
“Good luck with your address, Azra. Give it your best.”
* * *
Court resumes in room 6-1 an hour late, to puzzled frowns and mutters from the pews, particularly from the press rows, as they see an empty chair where Juror Twelve used to sit. The judge’s explanation that Ms. Lee-Yeung “encountered a personal issue that, regrettably, renders her unable to continue” does little, Arthur suspects, to tamp down speculation. In fact, most people in here, including the jury, probably think that’s hogwash. The foreman, the architect, looks troubled. Rumours will soon abound, conspiracy theories will be hatched: Abbie Lee-Yeung committed some great evil. She was clearly pro-defence, so the prosecution found dirt on her. She promised trouble in the jury room, she had to be removed, more proof that the courts are crooked.
So it’s not the ideal time to begin an address to the jury, and Azra Khan will have to work hard to grab their attention. He begins with the standard liturgy of advantages granted to the defence: the onus of proof on the Crown, the presumption of innocence, reasonable doubt — precepts he likely won’t mention again.
He expends significantly more effort defining conspiracy. “Simply, it’s a meeting of the minds to commit an indictable offence enumerated in this book.” Holding high a Criminal Code. “Such as break-enter and theft — in this case from the Sarnia plant early last September. An offence conceived, engineered, and proudly accomplished by these seven members of the Earth Survival Rebellion.” A wide sweep of his right arm in their direction. His left hand holds pages of transcript.
“No one’s pretending they didn’t do it.” He gets close to the jury, amiable, relaxed, confident. “They boldly admitted the crime. Again and again and again.”
Khan unfolds a page. “The New Yorker profile of Dr. Helmut Knutsen has him outlining the entire scheme while modestly admitting he was its inspiring force. His opinion piece in The Guardian just a month ago, titled ‘The Necessity of Direct Action,’ shows an abysmal lack of repentance. Apparently it was excerpted from a book he’s written.”
Khan can’t resist portraying Knutsen as cold-hearted, reminding the jury he was heard on tape dismissing the late drug-addled Archie Gooch as a “casualty of war.”
Another glance at the transcripts. “If Dr. Knutsen was the executive director of the Survival Rebellion, Joe Meekes was the technical director. We have him telling an online cyber journal that the coding system for Chemican’s locks and electronics was so elementary he could have trained a chimpanzee to bypass it.”
Even Arthur smiles. Khan continues to lightly sketch each accused, employing a cynical wit. He flips a page. “Lucy Wales. Remember this jaunty interview in Rolling Stone? ‘It was a snap,’ said the cheeky self-styled anarchist. ‘We waltzed right in and woul
d’ve waltzed right out again if Rockin’ Ray hadn’t got blasted on acid and knocked over the equipment rack. They’d have thought it was an inside job.’
“Mr. Wozniak’s recall of the events seemed more bizarre with each retelling. As best I can make out he claims that God, having anointed him as the avenger, commanded him to wreak havoc in the Chemican plant. Mr. Beauchamp will urge you to believe he was too intoxicated to know what he was doing, yet he boasted he created a distraction so the others could safely flee. Same article, Rolling Stone.” He leans confidingly toward the jurors. “So how impaired was he, really?”
Arthur takes this in with admiration and sagging spirits — Khan is charming the jury: getting eye contact, smiles, especially from the women.
“A word about Rivke Levitsky, whose exceptional skill in attracting publicity has generously made out the Crown’s case against her beyond all doubt. Sadly, her outspokenness attracted unsavoury interest from a racist thug. Truly, she owes a heartfelt thanks to the Toronto Police Service for resolving that issue with such speed and competence.”
He beams a smile at Rivie, who merely cocks an eyebrow, then mocks her for her “cunning seduction of poor, confused Howell Griffin, who obviously still doesn’t know what hit him.” As to her use of a forged passport, no defence had been raised for the simple reason that no defence exists — unless the necessity defence applies to saving one’s skin by fleeing the jurisdiction.
Next up are Ivor Trebiloff and Amy Snider. He doesn’t want to lose credibility by overstating the iffy case against these two veteran campaigners, and merely notes they’d housed and hosted Operation Beekeeper and therefore knowingly aided in the objects of the conspiracy.
Having playfully profiled his rogues’ gallery, he goes on to question the strategies of their counsel. “In my experience, ladies and gentlemen, when a case seems dead in the water, any good lawyer” — a friendly wave at the defence table — “will grab onto whatever lifesaver comes floating by. And, that, my friends, was a vague, ill-defined concept in law called necessity.
“As Her Ladyship will tell you, this defence is available only in urgent situations of clear and imminent peril when there’s no lawful way out. Quite a reach: clear and imminent peril when there’s no way out. But who can blame my learned friends for trying? When they couldn’t come up with a plausible defence, their only option was to try to pull one out of their” — a perfectly timed pause — “hats.”
Laughter. At this rate he will soon own the jury. Arthur looks woefully at that empty twelfth chair.
“Almost by definition, the planned, sophisticated burglary of a pesticide plant could not possibly be an urgent reaction to a clear, imminent peril. Let’s cut the blarney and see this for what it was. A political act. An act of political protest. More accurately, maybe, a burlesque disguised as an act of protest.
“Ladies and gentlemen, none of us want to live in a society where the rule of law is ignored or trifled with because those of radical views regard it as incorrect and old-fashioned. Because that’s where we’re going, to a breakdown of law and order, if we allow any alleged do-gooder to violate the law just to get attention — like a wayward child.”
This gets a rare smile from Justice Donahue, who has otherwise managed not to betray her enthusiasm for Khan’s broadside against the necessity defence.
“Where does it stop? Is the defence also available to everyone who believes in all manner of obscure or worthless causes? Or who merely act on a gripe or a whim? If we allow robbers to get off because they feel morally justified, do we similarly excuse assassins? Is it okay to burn down a tobacco store because too many die of lung cancer? Do we give a free pass to those of firm religious belief who harry or assault an alleged heretic? A gay person? An abortion provider? A sex worker?
“In the words of a renowned British judge, the necessity defence, too liberally interpreted, could, quote, ‘very easily become simply a mask for anarchy.’ That’s right, my friends. Anarchy.”
Azra Khan is royally in command of room 6-1. No murmurs of protest sound from the back rows where the Bee-lievers sit. The Sarnia Seven seem just as quelled — rigid in expression, sulky, like errant students scolded by their principal. Arthur is witnessing the Crown Attorney in his finest hour, after weeks of uneven effort, of ducking and dodging blows from his two combatants while burdened by his mother’s terrible illness.
He’s poised, sure of himself, sure of his message, even as he begins an evisceration of the defence strategies: “‘Necessity!’ cried my colleagues over there. Their clients had no choice! But of course my friends realized how treacherous was the ground on which they sought to tread. Surely that’s why they grasped at a different straw, in nearer reach. It’s all Chemican’s fault! Blame the victim!
“Remember their devastating cross-examinations of Chemican’s senior officer and senior scientist? The bribery, the false tests, the carelessness, the cover-ups, the spills, the scapegoating. A brilliant bit of sleight of hand — it’s what the clever magicians do, focus on the devil conjured up, distract attention from the hidden escape hatch.”
An unladylike snort of laughter from Khan’s lanky young student-at-law is quickly suppressed, disguised as a hoarse cough.
“Ladies and gentlemen, please let me be clear that I share with my learned friends their disgust about Chemican-International’s efforts to promote their line of neonicotinoids. We have heard about some slippery and highly questionable efforts in the testing and marketing of their signature product, Vigor-Gro. I hold no sympathy for Chemican. I applaud my learned friends — eminent barristers both — for laying bare its duplicity. But Chemican is not on trial, contrary to what my honourable friends want you to believe.”
Arthur has seen this play before: I am no orator, as Brutus is . . . Brutus is an honourable man.
“Mr. Beauchamp soon realized that a discerning jury of twelve honest Torontonians was not going to be confused into thinking Chemican was being prosecuted here, so he shifted gears a second time. He embarked on yet another brave and desperate mission — blaming Chemican’s director of security. Mr. Howell J. Griffin was the evil genius behind it all.
“Hadn’t he hired a junkie drug-pushing hoodlum to guard the factory? The late Archie Gooch, poor fellow, whom Howie Griffin entrusted with the entrance codes to the plant. Somehow Howie Griffin had never got around to installing security cameras in the building. So of course, it’s obvious, the whole thing was an insurance scam, and Griffin, needing lots of extra change to support his coke habit, entered into a deep conspiracy with his corporate bosses to use the Earth Survival Rebels as unwitting pawns.”
The air in here has become too dense with sarcasm for Arthur’s comfort but he fears it’s working with most of the jurors.
“And we all know that ploy was quickly deflated when Mr. Griffin took the witness stand. Mr. Beauchamp, to give him credit, then handsomely apologized for insinuating Griffin helped facilitate the Sarnia attack. But my infinitely resourceful friend devised yet another construct: suddenly it wasn’t the bees that were in trouble, it was human health.
“Enter Mr. Charlie Dover, a fine young man with a serious disability who may have deserved better than he got from Chemican. Maybe he was severely allergic to Vigor-Gro. Maybe a minute population of this world’s inhabitants may be allergic to ziegladoxin. Maybe use of that substance should be suspended worldwide.
“Maybe, maybe, maybe. Ladies and gentlemen, a whole bunch of maybes can never comprise an urgent situation of clear and imminent peril. You cannot conspire to react urgently to an imminent peril! That’s the fundamental fallacy in the defence argument.”
He moves on to his most telling point:
“Where is the nexus between the direct action undertaken by the defendants, their attack on the neonic plant, and the alleged human health dangers of neonics? When they began their scheming the accused had no clue that Charlie Dover even ex
isted or that trials on humans had ever been undertaken. That point was candidly conceded by Dr. Ariana Van Doorn, the defence’s chief witness.”
As to the second leg of the test for necessity — no lawful way out — surely the jury could not accept that raiding a factory “is the only way to save the bees and the birds and all of humankind.”
Khan reminds the jury that the perils of cigarette smoking were lawfully dealt with by public opposition to Big Tobacco, by political action, by massive suits in damages. Likewise public protest and civil actions led to the downfall of Big Pharma’s opiate producers. “Nobody had to scheme and conspire and break the criminal law to save lives from lung cancer and opiate addiction.”
Khan has gotten a bit hoarse. He takes a deep breath. This is it, his peroration, he’s reaching oratorical climax.
“Ladies and gentlemen, today, tomorrow, and until you render your verdict, you are sitting in judgment of one of the most critical issues of law of our generation: Do we reward those who break the law out of an arrogant sense of rightness — or do we hold the line?
“If you, our jury, don’t hold the line, what precedent do you set? That it’s okay to burn buildings and blow up bridges because that’s somehow going to save the world? Are you prepared to give a green light to acts of terror committed by those who claim to hold the answer to all the world’s ills? Or do you stand strong and render a verdict that will deter others who may conspire at truly monstrous evils. I urge you to tell the world: no to anarchy, we are not going there, we are standing up for democracy and the rule of law.”
4
A single handclap has Judge Donahue searching for the perpetrator as Azra Khan takes his seat in a swirl of black robes. Echoes of his oratory seem to reverberate faintly about the hushed vastness of this courtroom. Arthur feels the suppressed energy back there, spectators fighting the knee-jerk urge to applaud or cry “Bravo.”
Stung Page 53