About Me

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Melfort, Saskatchewan, Canada
I am a lawyer in Melfort, Saskatchewan, Canada who enjoys reading, especially mysteries. Since 2000 I have been writing personal book reviews. This blog includes my reviews, information on and interviews with authors and descriptions of mystery bookstores I have visited. I strive to review all Saskatchewan mysteries. Other Canadian mysteries are listed under the Rest of Canada. As a lawyer I am always interested in legal mysteries. I have a separate page for legal mysteries. Occasionally my reviews of legal mysteries comment on the legal reality of the mystery. You can follow the progression of my favourite authors with up to 15 reviews. Each year I select my favourites in "Bill's Best of ----". As well as current reviews I am posting reviews from 2000 to 2011. Below my most recent couple of posts are the posts of Saskatchewan mysteries I have reviewed alphabetically by author. If you only want a sentence or two description of the book and my recommendation when deciding whether to read the book look at the bold portion of the review. If you would like to email me the link to my email is on the profile page.

Friday, January 29, 2021

Writing a Credible Trial

Writers of legal mysteries featuring trials, especially if the defence is to win, always face the challenge of credible evidence. The evidence must be strong enough to threaten conviction but not so overwhelming as to make a defence unbelievable. At the same time there cannot be too much evidence favouring the defence for the Crown (Canada) or the State (United States) would not proceed with weak charges. In Canada prosecutors should only proceed to trial if there is a reasonable likelihood of conviction.

The challenge was taken up by two masters of legal mysteries - John Grisham and Michael Connelly - in the last two books I have read. In this post I will look at the approaches taken by them in A Time for Mercy and The Law of Innocence respectively. There will be spoilers in the post but not of the endings of the books.

Grisham starts A Time for Mercy by eliminating the most basic defence. Drew Gamble shoots Stewart Kofer in the head while he was passed out drunk. Eliminating any chance for the defence to argue Drew did not kille Kofer puts the defence at a major disadvantage.


By contrast Mickey Haller, in The Law of Innocence, from the opening pages vehemently denies he has killed Sam Scales, who has spent his adult life running charitable scams, and then driven around Los Angeles with Scales in the trunk of his Lincoln Town car.


Grisham swiftly starts building a defence by establishing that Drew was justly terrified that Kofer, who has chronically abused Drew, his sister and his mother, is about to kill him and his sister. He wrongly believes his unconscious mother, beaten by Kofer, is already dead.


For Connelly there is the challenge of giving Haller a realistic motive  for murder. It was the major weakness in the plot. Haller had given up defending Scales, weary of defending a man who preyed on human vulnerability in times of disaster. Facing a situation with which I am well familiar Haller sues Scales for unpaid legal fees. He gains judgment but it is uncollectable from the slippery con man. It is barely credible that Haller would kill Scales because of an unpaid bill. There may be lawyers in private practice who have no unpaid accounts but I know none. Getting stiffed is frustrating but no more than an irritation. 


Connelly’s motive became far fetched when a letter from Haller to Scales threatening action if the account was not paid was used to justify a claim of special circumstances that would send Haller to jail for the rest of his life if convicted. The letter was slender evidence for lawyers routinely and constantly use the word “action” as a contraction for “court action”.


It appeared the State, realizing there was no personal animus from Haller against Scales, decided to argue there was a financial advantage to Haller killing Scales. If Scales were dead Haller could pursue his estate for the unpaid fees. The fundamental flaw is that there was no prospect of collection from the estate of Scales. The elusive Scales had a long history of aliases and fake identities. It was impossible to know how many false names were unknown. It would not be worth trying to track down any money hidden by the scammer. Even if some money was found the claims of the many victims of Scales’ scams would far exceed Haller’s judgment for legal fees.


The plot would have been more credible on motive if Haller had engaged in major arguments with Scales. The State could argue the hot headed Haller might have acted impulsively and violently if he had encountered Scales and been blown off by Scales about the money owed to Haller.


Another option would have Scales complaining to the Bar Association about Haller. All sorts of anger would erupt in Haller over an unjustified or false accusation that could threaten his licence to practise law.


Each author picked a very difficult defence.


Jake Brigance, defending Drew, argued the killing was justified. It is not actually a legal defence to argue Kofer was a man who deserved killing. To his credit Grisham does not make the defence easier by having Drew’s sister tell him that she was sexually abused by Kofer. The justification is based on the extensive and escalating physical and emotional abuse by Kofer. The disgusting details are such that a jury might refuse to convict.


As outlined in my review of the book Connelly chose the most difficult of defences - finding the actual killer to establish Haller was not guilty. It means conducting the investigation the police failed to do after the murder. 


The strength of the plot is in that investigation handled by Haller’s veteran personal investigator, Cisco, and Haller’s half-brother, the legendary Harry Bosch. They go after the unexplored threads left by the police.


Both authors have a surprise development at trial. The unexpected in each case involves the question of disclosure of the case. Where California requires extensive disclosure Mississippi prefers a minimalist approach. The defence is at a continual disadvantage in Mississippi.


Grisham credibly turns the lack of disclosure requirement into bringing forward a witness whose physical condition is as important as the evidence. The condition is not revealed until the witness appears to give evidence.


Clever as always, Connelly describes these trial ambushes as October Surprises. While the State brings forward a damaging surprise Haller has a better surprise with a document not disclosed until cross-examination. He is unconcerned that the prosecutor is furious and the judge angry.


Grisham and Connelly create compelling trials. Grisham’s trial is better as Drew has the more believable reason to kill.


Saturday, January 23, 2021

The Law of Innocence by Michael Connelly

(1. - 1073.) The Law of Innocence by Michael Connelly - When Mickey Haller is stopped for a routine traffic infraction - his licence plate is missing - liquid is dripping from his trunk. Trouble. Sure enough, there is a body in the trunk of his Lincoln Town Car and Mickey is arrested for murder. 

Mickey’s defence is hampered because he is in jail in the Twin Towers pending trial. His bail, set by an unfriendly judge, is an exorbitant $5,000,000 meaning a bond would be $500,000. It is too high for Mickey to raise without exhausting his resources. It is a not so subtle commentary on the inequities of the American pre-trial release proceeding when even the well-to-do cannot afford bail.


I was not surprised, though I was dismayed when Mickey decided to defend himself. While the prospects of placing your life in the hands of another is daunting, defending yourself is worse. It is impossible to be objective. It is also hubris to think no other lawyer could do a better job. Fortunately, Mickey is working with his partner, Jennifer Ariston. She has excellent legal skills and more importantly, understands Mickey well enough to to tell him when his hyper-aggressive tactics need to be restrained.


The murder appears spectacularly inept for a defence lawyer with 25 years of experience at the bar. Killing a former client, Sam Scales, in the trunk of your car and driving around Los Angeles for a day with the corpse in the trunk does not make sense for the dimmest citizen let alone a clever man. Mickey has engaged in some sleazy legal tactics but I cannot see him a killer.


I was touched when a former client and Harry Bosch, his half brother and retired LAPD detective, reach out to offer hundreds of thousands of dollars in support of Mickey. Bosch, while still considering defence work the dark side, asks to join the defence team. Mickey is glad to have Bosch on his side.


In the boldest defense strategy possible Mickey invokes the law of innocence. Not content with raising reasonable doubt he seeks the holy grail of innocence:


The law of innocence is unwritten. It will not be found in a leather-bound codebook. It will never be argued in a courtroom. It cannot be written into law by the elected. It is an abstract idea and yet it closely aligns with the hard laws of nature and science. In the play of physics, for every action, there is an equal and opposite reaction. In the law of innocence, for every man not guilty of a crime, there is a man out there who is. And to prove true innocence, the guilty man must be found and exposed to the world.


There is no standard of proof for the law of innocence as it is a concept, as set out above, outside the legal statutes, principles and cases that govern criminal law.


While a righteous defence is good theatre it is the most dangerous approach to a trial for it may tip a jury to a guilty decision if the accused cannot establish their innocence to the satisfaction of the jury.


In The Law of Innocence the prosecutor, Dana “Death Penalty” ---- or the Iceberg, is a zealous prosecutor who considers Mickey one of the lowest forms of life.


Pleading the law of innocence means the defense team must find the real killer, not merely the possible killer. The process is complicated by Scales being a con man. He ran fake charity scams seeking donations for the victims of American tragedies such as mass shootings. He has a series of known aliases let alone his unknown false names. The hardened Mickey eventually quit representing Scales as his schemes were too much for Mickey.


Not all of the book collaborations between the half-brothers has gone well. Here it is very credible.


Both Mickey and Harry, as with other good trial counsel and investigators, obsess over detail. They examine carefully all evidence. Their diligence is rewarded by such flaws as determining the deceased’s wallet went missing after he was taken from Mickey’s car by the police but before there was an inventory of his effects by the detectives.


To add to the stress Mickey insists on a speedy trial which means he has little time to find the real killer before he is on trial for murder.


The trial features Mickey and his co-counsel, a totally unexpected attorney drawn into the case when Jennifer goes to Washington state where her father is an early victim of what turned out to be Covid 19. (The trial takes place in late February of 2020.)


I was glad to see Mickey willing to let co-counsel have a significant role and actually defer to co-counsel on occasion - a major concession for a man with a huge ego.


Connelly keeps the trial moving and the tension building. The State will hammer to the jury every day that Scales was killed in the trunk of Mickey’s car while it was parked in his garage. Pleading reasonable doubt would have been challenging enough but pleading the law of innocence is a huge burden.


The Law of Innocence is an excellent book. It is one of Connelly’s best books. 2021 is off to a great start.

****

Connelly, Michael – (2000) - Void Moon; (2001) - A Darkness More than Night; (2001) - The Concrete Blonde (Third best fiction of 2001); (2002) - Blood Work (The Best);  (2002) - City of Bones; (2003) - Lost Light; (2004) - The Narrows; (2005) - The Closers (Tied for 3rd best fiction of 2005); (2005) - The Lincoln Lawyer; (2007) - Echo Park; (2007) - The Overlook; (2008) - The Brass Verdict; (2009) – The Scarecrow; (2009) – Nine Dragons; (2011) - The Reversal; (2011) - The Fifth Witness; (2012) - The Drop; (2012) - Black Echo; (2012) - Harry Bosch: The First 20 Years; (2012) - The Black Box; (2014) - The Gods of Guilt; (2014) - The Bloody Flag Move is Sleazy and Unethical; (2015) - The Burning Room; (2015) - Everybody Counts or Nobody Counts; (2016) - The Crossing; (2016) - Lawyers and Police Shifting Sides; (2017) - The Wrong Side of Goodbye and A Famous Holograph Will; (2017) - Bosch - T.V. - Season One and Titus Welliver as Harry Bosch; (2018) - Two Kinds of Truth; (2019) - Dark Sacred Night and A Protest on Connelly's Use of Vigilante Justice; (2020) - The Night Fire; (2020) - Fair Warning; Hardcover


Tuesday, January 19, 2021

Practising Law in Rural Mississippi and Saskatchewan

Before embarking on my trio of posts about court cases and commissions of inquiry setting the facts of history I had reviewed A Time for Mercy by John Grisham. It was an excellent book. As I read the book I reflected on the life of a country lawyer.


Many of the aspects of Jake Brigance’s life and firm remind me of my own experience in rural Saskatchewan. In the book Jake is 37 in 1990. I was 38 that year. 


I could appreciate his constant need for new cases and transactions to maintain cash flow because large cases are few in the country. The big cases usually stay in the cases.


As set out in my last post I have had the chance to participate in nationally prominent cases. In addition to the Commissions of Inquiry described in that post I had the opportunity to take part in several national class actions. Yet most of my time has been spent on cases and transactions of importance to the participants but rarely gained further attention.


While rare there can be a local case that garners national, even international attention. Most recently in Saskatchewan it was the Humboldt Broncos hockey team bus crash that took place 70 km from Melfort. It was the notorious case that a rural lawyer will have to decide whether it will cost business. 


Every defendant in major trouble is entitled to a lawyer. Here it is easier as Legal Aid is more established and there is a wider pool of lawyers willing to travel to take on such cases. Still I was glad we were not approached to defend the driver in the Humboldt Bronco bus crash. It avoided a decision for our firm.


In A Question of Mercy Jake agonizes over taking on another controversial defence to a murder charge. He knows there will be hostility and anger and financial consequences to representing 16 year old Drew Gamble on the charge he murdered Deputy Sheriff Stewart Kofer.


Thankfully the threats against lawyers taking unpopular cases are absent in rural Saskatchewan. I have never known a lawyer to have his/her house burned down as Jake’s house was burned in Grisham’s first book, A Time to Kill.


On a happier note being in a general practice in a rural area means continuing relationships. As Jake has known several of his clients and their families in different ways I have appreciated the chance to represent up to four generations of the same family.


While all litigators know the judges where they are resident you must learn in the country how to work with judges you deal with all the time. In Saskatchewan Provincial Court judges preside in an area. There are two resident judges in Melfort. You worry less about the relationships in larger centres where you see more judges. I am glad that Queen’s Bench judges are rotated in Saskatchewan which results in a variety of judges coming to Melfort.


In Grisham’s books about trials in Mississippi the need for research on some jurors is eliminated as the lawyers personally know them. I expect to know potential jurors in any pool of jurors for a jury trial in Melfort. What I have had to deal with involves potential jurors being eliminated simply because they know me. In one trial I asked the trial judge to require more than just knowledge of me for dismissal as a juror.


Having read the Grisham books and a few more on trials in the deep American South I believe the jurors of our area are more willing to find accused not guilty than in rural Mississippi.  My conclusion is hardly scientific and I recognize the risk of relying on fiction for real life.


There are some distinct differences between practising in rural Mississippi and rural Saskatchewan. There are neither elected judges nor elected Sheriffs in Saskatchewan.


Most of the police in rural Saskatchewan are not permanent residents of the area as are the officers of the Ford County Sheriff’s department or the members of the Clanton police force. As our officers are members of the RCMP they are part of a national police force and transferred every few years.


I appreciate, as does Jake, being within a few minutes of home so that it is possible to have more time with family.


You do have close personal relationships with fellow lawyers. Certainly there are relationships in larger cities for lawyers but I believe the small regional bars in the country promote strong relationships among the lawyers.


I am sure there are class distinctions in Saskatchewan but they are certainly less obvious than such institutions as the country club at Clanton. Melfort’s “country” club is open to all golfers at a modest fee. They are always seeking new members.


There is a major racial divide in Saskatchewan. There are racist attitudes towards the indigenous peoples of our country. I think Canada’s less violent racial history and efforts at addressing racism mean racism has a lesser presence in practising law here than Mississippi. As to the inequalities in our judicial system I make no comment in this post.


I hope Grisham will return in a future book to Mississippi but the acknowledgements suggested he has written enough about Ford County.

****

Grisham, John – (2000) - The Brethren; (2001) - A Painted House; (2002) - The Summons; (2003) - The King of Torts; (2004) - The Last Juror; (2005) - The Runaway Jury; (2005) - The Broker; (2008) - The Appeal; (2009) - The Associate; (2011) - The Confession; (2011) - The Litigators; (2012) - "G" is for John Grisham - Part I and Part II; (2013) - The Racketeer; (2013) - Grisham's Lawyers; (2013) - Analyzing Grisham's Lawyers; (2013) - Sycamore Row; (2014) - Gray Mountain and Gray Mountain and Real Life Legal Aid; (2015) - Rogue Lawyer and Sebastian Rudd; (2016) - The Whistler; (2017) - Camino Island; (2017) - The Rooster Bar and Law Students and Integrity; (2019) - The Reckoning; (2019) - Cullen Post in The Guardians and The Guardians; (2020) - A Time for Mercy

Friday, January 15, 2021

Commissions of Inquiry Determining History

A few days ago I put up a post on the Dominion Voting Systems v. Powell defamation case. In the action, commenced a week ago today, Dominion claims Powell, with malice, damaged the business and its reputation through wild accusations of misconduct in the 2020 U.S. Presidential election. I believe they have a strong case.

I have been unable to find a public response or even determine if she has hired a lawyer. The Washington Post has reported that neither Powell nor Rudy Guiliani have appeared on a Fox news program in a month which is fairly close to when Dominion sent a letter to Fox News about its coverage.

I believe the Dominion case, if it reaches trial, has the chance to be the definitive statement on what happened in the election.  I expect Dominion can prove there was no fraud by its machines.

In my last post (a link is below) I put up a letter I wrote 18 years ago to the author, D.D. Guttenplan, on his book, The Holocaust on Trial. It was a libel action by the English author, claiming American author, Deborah Lipstadt, and Penguin books had defamed him concerning the Holocaust. As part of their defence Lipstadt and Penguin put forth evidence proving the Holocaust occurred. I anticipate that, in the future, the evidence used in this case and its acceptance by an English court will be used to challenge Holocaust deniers.

The letter also provided examples of libel cases in Canada, Germany and Israel where the facts of history were determined in court.

My overall conclusion was that the “establishment” view of history won the challenges of historical determination and interpretation. The establishment position may have been right or it may have been wrong but it would win.

I no longer accept my conclusion that the "establishment" will prevail. In the past 25 years I have had the opportunity to participate in two Canadian Government Commissions of Inquiry that reached conclusions on major historical issues contrary to the “establishment” position.

The first was the 4 year inquiry during the 1990’s into the Canadian Blood System. During the 1980’s thousands of Canadians were infected with HIV and Hepatitis C through our blood system. I represented a group of hemophiliacs and blood transfused from all 10 Canadian provinces who did not want to be represented at the Inquiry by their official organization, the Canadian Hemophilia Society.

The operator of the blood system, the Canadian Red Cross, asserted it had acted promptly and properly in dealing with these infectious diseases. After reviewing thousands of documents and hearing dozens of witnesses who faced cross-examination and receiving submissions from numerous lawyers the Commissioner, Justice Krever, issued a report that was devastating to the Red Cross. After the Inquiry the Red Cross was removed as the operator of the system.

My good friend, Doug Elliott, was the leader of a team that represented the Canadian Aids Society at the Commission.

In addition, we represented our clients in the judicial review process in which the Red Cross and governments and governmental agencies and doctors unsuccessfully sought to limit the Commissioner from assigning responsibility for the public health disaster.

It was a powerful experience advocating on behalf of victims.

I appreciated getting to know and learn from Doug as we sought to help the Commissioner determine what happened and why it happened.

At the time of the release of the report in 1997 I was glad to see a successful challenge to the “establishment” but thought the success was an aberration.

More recently I have represented First Nations (Indian bands) near Melfort at Fort a la Corne who have challenged how their reserves were established and how portions of their reserves were surrendered to the Government of Canada. The Government asserted all actions had been lawfully conducted. In Inquiries before the Indian Claims Commission it was proven there was massive fraud and corruption within the Department of Indian Affairs in the late 19th and early 20th Centuries.

As an example, before I became involved, my clients had retained an ex-RCMP document examiner who proved by typewriter analysis and hand writing analysis 100 years later that tender bids purportedly from Iowa had been typed up in the Indian Affairs headquarters in Ottawa and signed in Toronto.

The combined effects of participating in the search for the truth at those Inquires has led me to believe in Canada the “establishment” is no longer bound to win in the writing of history.

I do not believe the full facts and reasons for the tainted blood scandal, a huge public health disaster, would have ever been determined without the Inquiry Into the Blood System.

As we endure the pandemic of Covid 19 I am anticipating there will be another great Commission of Inquiry to delve into why the pandemic happened and how governments dealt with the pandemic. 

It will take the victims and their families to press for such an Inquiry. Governments will seek to minimize investigations of the pandemic and avoid a national Inquiry.

If the victims of the pandemic, as did the victims of the Blood Commission of Inquiry and more recently in Nova Scotia concerning the mass killing this spring by Gabriel Wortman, demand an Inquiry public pressure will force an Inquiry.

I also expect Governments will be compelled by the public to set broad parameters to a new Inquiry.

If sufficient public funds are provided for lawyers to represent the victims I believe the facts of and reasons for the Covid 19 pandemic will be determined.

A Covid 19 Inquiry will be fascinating.

****

Dominion Voting v. Powell - Defamation Action to Set History

Court Cases to Determine the Truth About Historical Events


Tuesday, January 12, 2021

Court Cases to Determine the Truth about Historical Events

On Sunday I put up a post on the lawsuit commenced by Dominion Voting Systems against Sidney Powell. Dominion is suing Powell for defamation with regard to her claims Dominion engaged in fraud in the 2020 American presidential election. A link to that post is at the end of this post. I believe a trial in that court action will be the pivotal record of what actually happened in the election.

I have long been fascinated by court actions and judicial proceedings, usually defamation actions, seeking to define what is truth in historical events.

In 2002 I read The Holocaust on Trial. It was a book about the English libel trial in which historian David Irving claimed that American author, Deborah Lipstadt, in her book, Denyingi the Holocaust, and the publisher, Penguin Books, had defamed him as a liar and a dangerous spokesman for Holocaust denial. To establish that her comments were true Penguin and Lipstadt proved through the evidence they presented that the Holocaust occurred. The judge harshly dealt with Irving.


After reading the book I put together my thoughts on court cases and history and wrote to the author. My letter from 2002 is below. In my next post I will discuss some personal experiences on establishing the truth of historic events through judicial proceedings.

****

Dear Mr. Guttenplan:

I recently finished reading The Holocaust on Trial. I found it an excellent book and look forward to your future books.

I am a practising lawyer and spend a considerable amount of my time engaged in litigation. I enjoyed your recounting of the pre-trial and trial preparations and strategies. It has been my experience that members of the public are not aware of the significance of pre-trial work until they are personally involved in litigation.

I have long been fascinated by efforts in trials to deal with "history" in its broader context. Certainly every trial involves history but most trials are focused on the personal histories of the participants.

It was a great challenge in the Irving trial to deal with the facts of the Holocaust under the rules of evidence in civil proceedings. Each year that passes from the end of World War II the issue of hearsay becomes a bigger issue.

The Irving case was the latest in a succession of libel cases concerning the facts of "history".

Your book reminded me of a once famous, now almost forgotten Canadian libel trial, in which the history of the end of World War I was in issue. In the case of Currie v. Preston and Wilson the historical issue was whether the lives of Canadian soldiers were needlessly wasted in the final days and hours of the war.

Robert J. Sharpe (as he then was - now Mr. Justice Sharpe) wrote a book, The Last Day, the Last Hour, about the trial.

In the trial Sir Arthur Currie, commander of Canada's troops in Europe at the end of the war, sought to vindicate his decisions to keep attacking the Germans even in the minutes before the Armstice came into effect at 11:00 on November 11, 1918. (A Canadian soldier, George Lawrence Price, was the last identified soldier on the Allied side to die during the war.) General Currie sued the editor of a small Ontario newspaper for publishing an editorial that concluded:

"Canadian valour won Mons, but it was by such a shocking waste of human life that it is an eternal disgrace to the Headquarters that directed operations."

In the trial there were two major issues:

1.) Whether there were Canadian soldiers killed in the attack at Mons. Only Price's death was acknowledged; and,

 2.) The decision to continue the advance of the Canadian soldiers with the Armstice imminent. Who made what orders and how were the orders carried out. Was the attack justified?

Certainly the questions of history were more confined in the Currie libel case than the Irving case. At the same time I saw parallels in the efforts to prove the historical facts of a war in each case.

General Currie won his libel case but little personal satisfaction. He was completely worn out physically and emotionally by the trial.

The use of a libel trial to attempt to set the facts of history was used in 1924 by extreme German nationalists. Nikolaus Cossman sued Martin Gruber and the Munich Post over their personal and professional ridicule of his assertions that Germany lost World War I because it was "stabbed in the back" by the politicians who negotiated the Armstice that ended the war. In Explaining Hitler Ron Rosenbaum discusses the trial where politically motivated judges allowed history to be "counterfeited". Cossman won the trial and his vision of the "November criminals" was a familiar theme for Hitler.

I dread what perversions of history might have happened in the Irving trial 75 years later had there been a presiding judge who was guided by his political principles rather than the search for the truth.

 I was equally interested in how the Court had to deal with Irving's misuse of facts in support of his conclusions concerning the Holocaust.

The analysis of "historical facts" to arrive at "historical truth" in the Holocaust was addressed by Israeli courts during the 1950's in a libel trial, Attorney General v. Gruenvald. At issue in the case was Rudolph Kasztner's participation in the liquidation of Hungary's Jewish population. Was he, as accused by Mr. Gruenvald, an accessory or collaborator in the murder of hundreds of thousands of Hungary's Jews while saving 1,685 Jews? While there was no issue over the annihilation of Hungarian Jews in concentration camps it was very difficult for the courts to decide what a Hungarian Jewish leader did or should have done when confronted with the Nazi roundup of Hungarian Jews. Did negotiating with the Nazis produce culpability or complicity? The majority decision on appeal found Mr. Kasztner was neither an accomplice nor a collaborator.

The process of the writing of history was also covered in a recent book The Spinster and the Prophet. The book covered the story of a Canadian woman, Miss Florence Deeks, who wrote a history of the world during World War I. The evidence strongly indicated that her manuscript made its way to H.G. Wells and was used by him, more accurately copied by him, to write The Outline of History. She sued him for historical piracy in Canada.

Despite the evidence she was unsuccessful at trial and on appeals up to and including the Law Lords of the Privy Council.

H.G. Well's personal flamboyance and flexibility with the truth reminded me of Mr. Irving.

In each of the Irving, Currie, Cossman and Deeks cases I would say the establishment was the victor.

I believe the court was right in Irving. I am unsure whether General Currie or Mr. Kasztner were defamed. I am convinced the courts were wrong in Cossman and Deeks.

Best wishes.

Yours truly,

Bill Selnes

****

Dominion Voting v. Powell - Defamation Action to Set History


Sunday, January 10, 2021

Dominion Voting v. Powell - Defamation Action to Set History


On Friday Dominion Voting Systems filed a defamation lawsuit against Sidney Powell, her law firm and a company, Defending the Republic, Inc. that she set up to raise money for her legal efforts to challenge the U.S. presidential election of 2020. I have read through the Complaint (a link to which can be found below on the Washington Post website) which runs to 124 pages. While excessively detailed for pleadings it is a dramatic narrative. 


I have thought often about the use of defamation actions and other judicial proceedings to establish the facts of history. Where historians are reliant on documents and interviews there is no testing of evidence in the way cross-examinations in court can reveal the strengths and weaknesses of statements. My next two posts will take a look at a number of examples of defamation actions involving historic events.


The reason defamation actions can set the facts of history involves the nature of defamation. 


The opening sentence of the Complaint sets out Dominion’s position:


This defamation action arises from statements made by Sidney Powell, who— acting in concert with allies and media outlets determined to promote a false preconceived narrative about the 2020 election—caused unprecedented harm.


The classic, though dangerous defence, is for Powell to assert her narrative was true. I expect she will claim truth. Powell and her supporters have alleged they never had a chance to present their evidence in a trial. Now they will have that opportunity.


Thus the action is set up for a court to determine what is the truth.

 

Defendants who realize they are wrong may offer apologies in an effort to reduce or eliminate damages.


I cannot see Powell admitting the error of her ways. 


Powell clearly loves media attention. She leapt into the national spotlight with incredible allegations after the election. The Complaint sets out her wild claims and Dominion systematic refutation. While I am well aware of the danger of relying on pleadings in a lawsuit Dominion’s statements are compelling.


A simple example of her unfounded claims involves the history of Dominion:


Far from being created in Venezuela to rig elections for a now-deceased Venezuelan dictator, Dominion was founded in Toronto for the purpose of creating a fully auditable paper-based vote system that would empower people with disabilities to vote independently on verifiable paper ballots. 



Until 2018 Dominion was a Canadian owned corporation.


When challenged during the past two months Powell has, in the words of the Complaint, “doubled down” on her accusations.


After Dominon asked that she retract her false claims she responded publicly by insisting she had the evidence and that the Dominion companies were fraud masters.


Dominion upped the stakes by boldly stating Powell has deliberately made allegations she knows are false. They are asserting actual malice. They have strong evidence.


Among her claims are that Dominion rigged the presidential election and bribed Georgia election officials.


With regard to Georgia Dominion states:


The voter verified paper ballots are the hard evidence that can be easily used to verify the accuracy of the Dominion machine counts. If Dominion or anyone else had rigged the election by manipulating the vote counts in the Dominion machines—whether by “weighting” votes, trashing votes, adding votes, or otherwise—the number of paper ballots that were verified and cast by voters would not match the machine counts. In fact, independent 100% hand audits and recounts of paper ballots have repeatedly verified the accuracy of the vote counts from Dominion machines. 


Powell bewilderingly claims there were no full hand counts when the evidence from the state government is that there was a state wide hand count covering every vote.


I am very interested in seeing who Powell puts forward as witnesses. The witnesses who filed reports and affidavits in her lawsuits have been rejected in scathing language by judges.


The “Spyder” was one such witness. The Complaint states:


For example, Powell sponsored the declaration of an anonymous “military intelligence expert” code-named “Spyder,” who has since been identified as Josh Merritt. Powell’s “military intelligence expert” has now admitted that he never actually worked in military intelligence and that the declaration Powell’s team wrote for him to sign is “misleading” and he “was trying to backtrack” on it.


She subsequently re-stated the same information through an anonymous source.


Dominion has offered a convincing example of Powell filing “doctored” evidence in an election court action with regard to a Georgia government certificate that was dated and signed unlike the copy she put before the court.


It can be a challenge in defamation actions to know who received the slanderous information. Powell and Trump eliminated that issue personally by tweeting video of press conferences to their 1.2 million and 88 million followers respectively. The slander was seen round the world. (Each has now been permanently suspended by Twitter.)


Dominion can show that it is pervasive among the Republicans of the United States that Dominion is synonymous with fraud. Its employees have been harassed and received threats, including death threats. Dominion states it has spent over $565,000 for private security for its employees. At least one American politician has sought to ban the use of Dominion machines.


Dominion projects lost profit of over $200 million during the next 5 years and that “the viral disinformation campaign has irreparably damaged Dominion’s reputation and destroyed the resale value of a business that was worth between $450 million and $500 million before the viral disinformation campaign”. Its claim for compensatory damages of $651,735,000 is credible. Its additional claim for $651,735,000 in punitive damages is plausible if it gets substantial compensatory damages.


It is significant that the action was commenced in the United States Federal Court in Washington, D.C. I expect her frequent trips there, staying in D.C. for much of the last few months and at least one infamous press conference (think of the melting Giuliani) will justify proceeding in D.C. 


In considering where to have a jury action I expect Dominion looked carefully at D.C.’s population being 47% of the population black. I can understand Dominion’s preference for D.C. rather than Texas where Powell has her office.


As well I see this action as setting up a series of defamation actions in D.C. Come January 21, the day after Biden’s inauguration I expect Dominion will also be suing former President Trump in D.C. In the opening sentence quoted above Dominion refers to her allies. Dominion has given Trump, Giuliani and others the same formal notice letter they sent to Powell. At that unforgettable press conference she was introduced as a part of Trump’s “elite strike force team”. While she was soon cut from the team she remained in contact with Trump. (I will leave aside for this post the probability of actions against such media as Fox News.)


No matter how successful her fundraising Powell has no ability to pay hundreds of millions to more than a billion dollars in damages. There is a potential individual defendant with those resources. Trump has claimed billionaire status for decades. His net worth may actually be revealed if there is judgment against him.


In one of the great potential ironies of history there is another source of funds controlled by Trump that could be used to pay a judgment. He has somewhere between $250 million to $500 million donated by his followers for legal costs related to fighting the election. They are actually available for Trump to use as he chooses. It would be fitting justice if the funds he raised to contest the election were used to pay for a judgment upholding the results of the election.

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https://www.washingtonpost.com/context/read-dominion-voting-system-s-complaint-against-lawyer-sidney-powell/645e6826-ff2f-45c0-9b23-d2597f4dbb5e/


https://www.bloomberg.com/news/articles/2021-01-08/sidney-powell-sued-by-dominion-voting-over-election-fraud-claims?fbclid=IwAR1NVzYsOcugg_rsBhKdxoo0258TWXA4w8nm-DADuMIHVhWJn8SZM2928QY