Beyond All Reasonable Doubt by Malin Persson Giolito

Beyond All Reasonable Doubt by Malin Persson Giolito (Translated by Rachel Wilson Broyles) - Teenage Katrin Bjork, her parents away, invites her boyfriend for supper. He arrives interested only in sex. The 15 year old Katrin thinks sex followed by the meal. And then he turns brutal and she is dead.

Over a decade later Sophie Weber’s former law professor, Hans Segerstad, pushes her to take up the appeal of Stig Ahlin who was convicted of killing Katrin. He believes Ahlin is innocent. She is reluctant. It is not the crime. She has dealt with vicious crimes. Her claim she is not ready to take on another pro bono case is insincere. Her real hesitation is that she does not want to lose and such appeals absorb great amounts of time and are rarely successful. Yet the appeal will draw the same intense attention as the trial. Few defence counsel can resist the lure of a big case. When she agrees to look at the file she has actually, though not consciously, made the decision to represent Professor Death.

The story shifts back and forth between the original investigation by Bertil Lundberg and Weber working on the appeal.

The initial investigation struggled to find a suspect. There was no one in Katrin’s life who appeared to be a killer. And then, in the nursing home where Katrin worked part-time, an elderly woman with a wandering memory tells investigators that her son was kissing Katrin. It is a slender clue but it leads the police to look at Ahlin.

He is a very successful 35 year old doctor. At the same time he is arrogant and demanding and expectant that his wishes, demands, will be satisfied. 

Women seek him out sexually. He is not surprised when Katrin wants him. Age is of no concern. He uses her for his own satisfaction.

The investigation examines his personal life and concerns over his relationship with his four year old daughter, Ida. Divorced from her mother he has never been much of a father.

Ahlin maintains he only had a sexual relationship with Katrin and that he never killed her. He protests he never did anything improper with his daughter. Weber is intrigued by the prospect Ahlin is innocent. In an unusual act of legal self-justification she says she will represent him as long as she does not find evidence that he is guilty. She knows it is contrary to legal ethics to so restrict her representation but that is her condition. Her requirement places an unnecessary pressure upon her. It is difficult to know if someone is innocent. Wrongful conviction does not mean innocence. 

Weber commences her review of the case. While the circumstantial evidence should not have been enough to convict Ahlin merely pointing out weaknesses in the evidence will never win an appeal. If not Ahlin than who killed Katrin?

Weber focuses on the teeth marks on Katrin’s body. Forensic analysis identifies them as having been made by Ahlin. Can that analysis be challenged? I wondered at the reliability of an analysis of teeth marks. What analysis had police, prosecutors and experts done of the teeth marks?

She engages in the tedious but crucial process of wading through the mass of documents which are ill organized. Average lawyers skim files for the obviously important documents. It is easy to miss a crucial document in a cursory review.

Weber finds a document that gives her the means to challenge the pivotal evidence. In my next post I will discuss the difficulty of using evidence discovered by the defence after trial.

While the evidence she finds and the new analysis done is strong I thought she still needed a viable potential alternative killer.

It means exploring Katrin’s life. The image at trial was of a wonderful 15 year old. Weber rightly questions the one dimensional view. At that time no one wanted to re-victimize the victim. Laudable in principle avoiding a careful examination of the life of the victim can produce a wrongful conviction as prosecutors and police tunnel in on the accused they believe committed the crime.

Weber’s detailed, sometimes plodding, review of the details provides a startling simple explanation I had not seen, though all the information needed was provided the reader.

It was interesting to read how a Swedish murder appeal is handled. Since the author was a practising lawyer in Sweden I expect she got the procedure correct. Unlike Canada and the U.S. there was no oral argument. It was a paper appeal.

Beyond All Reasonable Doubt is well written and well translated. Giolito captures the grind of reviewing what seem like endless pages of trial evidence and exhibits for an appeal argument. 

Readers seeking a resolution beyond all reasonable doubt will be disappointed. Readers who appreciate complex characters and that ambiguity exists in crime will relish preparing the appeal with Sophie Weber. The ending will leave you in a thoughtful mood. I want to read more by Ms. Giolito.

My Choice for Winner of the 2019 Harper Lee Prize for Legal Fiction

For several years I have read the shortlist for the Harper Lee Prize for Legal Fiction. I like to review the books and determine my choice for the winner.

This year the short list consisted of:

1.) The Boat People by Sharon Bala;

2.) Class Action by Steven B. Frank; and,

3.) The Widows of Malabar Hill by Sujata Massey.

It would hard to find three books more diverse in legal fiction. Where last year’s trio all had “thriller” aspects to them none of this year’s selections were “thrillers”.

In considering the book I thought should win the award I like to focus on the Award criterion which sets out the Award is to go “to a book length work of fiction that best illuminates the role of lawyers in society and their power to effect change”.

Class Action saw an unlikely plaintiff for a class action in Sam Warren, a 6^th grader in Los Angeles, who takes on the education establishment of America with his legal challenge to homework.

Without a lawyer, his elderly neighbor Mr. Kalman, to file and frame the action Sam would have had no recourse against the tyranny of homework. He asserts that homework is preventing kids from being kids. They are unable to simply play or pursue personal interests.

Lawyers have effected change through actions involving schools. The process of de-segregating America was accelerated by the decision in Brown v. The Board of Education that rejected the principle of separate but equal schools.

Sam has a worthy cause.

The Widows of Malabar Hill delved into women’s issues in Bombay in 1921. The first woman solicitor in the city, Perveen Mistry, is caught up in the drama over an estate to be distributed between the three widows and their children of a Moslem businessman.

Mistry faces discrimination as many are unhappy with a woman becoming a lawyer.

Without preaching Massey deals with cultural issues of women in the early 20^th Century in India. The wives were isolated from contacts with males living in a divided home. Mistry, after marrying another Parsi was forced by her in-laws to be in seclusion when she was menstruating.

Mistry was changing society by leading the way for women to be lawyers in colonial India.

While certainly aware of her status as the first woman lawyer in the city she focuses on proving she is a capable solicitor and is committed to the best interests of her clients.

The Boat People was a thought provoking book on the questions of refugees arriving by ocean on the shores of a First World country. In the book 503 Tamils fleeing Sri Lanka after its brutal civil war arrive off the west coast of Canada.

The refugees are interned and put through rigorous vetting by federal adjudicators considering their refugee claims.

The Boat People was unique in fully considering the personalities and issues of claimants, adjudicators and lawyers.

The story of Mahindar and his son, Sellian, was wrenching. Separated on arrival they spend months awaiting a final decision.

Who qualifies as a refugee when documentary evidence is sparse and the claimants are desperate?

Lawyers have long been the defenders of the damned and forlorn. Government ministers, on little evidence, claim there will be Tamil Tigers among the passengers. The claimants, but for a few cannot speak English and have no resources. If they had no lawyers they would be lost in a complex legal process.

The Boat People demonstrated that it is the lawyers representing refugee claimants who are society’s representatives in ensuring there are just hearings preventing arbitrary deportations.

The Boat People was the choice of the judges of the Prize and I agree with them this year. I believe Bala is the first winner not be an American author.

Refugees have been a major legal issue through the 20^th Century and now into the 21^st Century. For many decades claimants had little chance for legal representation. The Boat People illustrates the importance of lawyers in the refugee process. As well I appreciated the thoughtful portrayals of individuals on all sides of the adjudication process. No one was demonized or mocked who had a contrary view to the author.

Until you stand with a client fighting against the Government of a nation it is hard to understand the weight upon your shoulders as a lawyer.

A First Woman Lawyer to be Admired

In The Widows of Malabar Hill the lawyer at the heart of the book is an Indian legal pioneer.

Perveen Mistry is the first woman solicitor in Bombay in 1921. This post may have spoilers for some readers in that it has significant information from the book about Perveen.

It is not a surprise her journey to become a lawyer was difficult. She was constantly bullied as the only woman student at the Government Law School in Bombay in 1915. The book moves between her life at that time and as a young lawyer in the early 1920’s.

The author, Sujata Massey, skillfully blends Perveen’s professional and personal life.

Perveen is a spirited young woman. I appreciated Massey does not try to make her a 21st Century woman. She is religious, respectful of parents and accepting of many limiting social customs. At the same time she is not content to stay at home. Perveen is determined to get an education and have a profession.

For Perveen there is great drama in her life in 1915. In an era of arranged marriages in India Perveen finds a path to marriage that combines the personal and traditional. 
Within every faith there are differences on the traditions to be maintained in marriage. For Perveen the expectation by in-laws of seclusion during menstruation is a great challenge.

Life with her husband turns brutal leading to a court case with her father as her powerful advocate. I could never see myself representing my sons. It would be too hard emotionally let alone the difficulty of being objective.

Eventually Perveen pursues her legal education. Her aspirations to be a lawyer are supported by few beyond her immediate family. It was moving to read of the unwavering and total support of her father, Jamshedji Mistry, for his daughter to become a lawyer and practise law with him. Without his encouragement, even pressure, I doubt she would have persevered against those resistant to a woman becoming a lawyer.

I started law school in 1972. My class at the University of Saskatchewan was the first class in which at least 25% of the class were women. I did not observe the overt bullying experienced by Perveen. I am sure it was not easy but my female classmates helped lead the way for women lawyers in Saskatchewan. Now a majority of law students are women.

Perveen enjoys practising law. She is certainly aware of her professional position as the first woman lawyer in Bombay but never claims status for her accomplishment.
In real life Mithan Tata Lam was the first woman admitted to the Bombay bar. It was 1923.

In Saskatchewan there were three different women who were first in the legal profession.

In 1913 Margaret Burgess was the first woman to be admitted as a student-at-law. In 1917 Mary Cathcart was the first woman admitted to the bar in Saskatchewan. In 1920 Elsie Hall became the first woman to gain a Bachelor of Law degree from the College of Law at the University of Saskatchewan.

I admired Perveen as a woman and as a lawyer. She is not perfect. She is very comfortable in her position as a member of the upper classes. Members of the lower classes have little role in her life.

I hope Massey writes a long series with Perveen as the lead character.

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Massey, Sujata - (2019) - The Widows of Malabar Hill

The Widows of Malabar Hill by Sujata Massey

(39. – 1,010) The Widows of Malabar Hill by Sujata Massey - One of the most fascinating works of legal fiction I have read.

I was instantly intrigued by the lead lawyer. In 1921 Perveen Mistry is the first female solicitor in Bombay. Working in the family firm her father is going to court and she is handling contracts. Clients and the legal administration are not quite ready to have a woman represent them in court.

The Mistry’s are Parsi. Of Persian origins they are Zoroastrians. Though “Parsis accounted for just 6 percent of Bombay’s total inhabitants, they constituted one-third of its lawyers”.

And then the case. Perveen is suspicious about a letter she has received from Faisal Mukri, who is the estate trustee and household agent for the estate of Omar Farid. He had three wives at his death. I had not anticipated the widows of the title would have shared a husband.

The letter states “that all the widows wanted to give up their assets as donations to the family’s wakf, a charitable trust that provided funds each year to the needy while paying a dividend to specified relatives. While a man or woman certainly could donate wherever he or she desired, wakfs were assiduously monitored by the government in order to prevent fraud, and a sudden infusio of money might be cause for scrutiny.”

Why would they want to give up their assets?

Perveen’s father cannot discuss the letter with the Moslem widows as they will not meet with a man who is not their husband or a close family relative but it is possible for Perveen to talk directly with them.

Meeting with the widows provides insight into the challenges of three wives sharing a home. Beyond internal rivalries they had lived in purdah spending virtually all their time within the house. Now they have an even more cloistered life with their husband gone.

And then Mukri is murdered within the house. The widows and servants are the  obvious suspects. From his treatment of everyone in the house to what he wanted to do with the estate motives abound for killing Mukri.

Farid died without a will. Rigid laws on inheritance create fear and friction.

As a lawyer I was caught up in the challenges presented in the book by differing laws for Indians of that time depending on their faith. Laws, such as divorce law, varies for Hindus, Moslems, Sikhs, Parsis and possibly other faiths. And then there is English law.

Women are at a disadvantage under all the legal systems. 

Perveen is unusual, not only because she is a professional woman but because she is the friend of the daughter of a prominent English administrator. Perveen and Alice Hobson-Jones attended Oxford together. The friendship creates interesting dynamics as Alice’s father is overseeing the murder case.

The investigation is sensitive. While a killer must be found the British do not want to provoke unrest and possibly riots by Muslim Indians if they do not respect the privacy rights of the secluded women, questioning them is a challenge. Will they close ranks against the police or will they turn upon one another?

Perveen is the only person with the standing from her sex, her professional status and social connections who can move between all the levels of personal, religious and business societies entertwined in the book.

Life is complicated for wealthy women in colonial India. Even for women not living in purdah they are bound by the traditions of the particular faith of their family and rarely associate with members of other faiths and only socialize within their own communities.

There is an architectural component to the solution that was subtle and vital to the resolution of the case and completely appropriate to the plot.

It is a good mystery with a plausible ending. Perveen finds the solution but it does not involve her legal skills. The Widows of Malabar Hill is the first in a series. I hope subsequent books more fully use the legal talents of Perveen.

With so many laws covering the same areas it would have been intriguing to be a lawyer in the Bombay of the 1920’s. I thought there must have been many conflicts over which law would prevail when the opposing parties were of different faiths. Which law has priority?

Perveen is such a great character my next post will be about her.

2019 Harper Lee Prize Winner - The Boat People

Earlier this month The Boat People by Sharon Bala was announced as the winner of the 2019 Harper Lee Prize for Legal Fiction. It was a coincidence I was putting up posts on The Boat People at the same time. From the shortlist for the Award I am currently reading The Widows of Malabar Hill Earlier this month I had read Class Action, the third book on the shortlist. 

The joint press release of the University of Alabama Law School and the American Bar Association Journal announcing The Boat People as winner states;

“‘The Boat People’ is timely and powerful. Even those who think they are versed in the various vantage points involved in the complex area of immigration will gain a deeper appreciation of the nuances by reading Sharon Bala’s first novel,” said Molly McDonough, editor and publisher of the ABA Journal. “The book explores the perspectives of desperate refugees; the attorneys who – voluntarily or not – are trying to help them; and the adjudicators who are asked to make potentially life-or-death decisions with little to no evidence.”

Legal mystery fiction author and a member of this year’s judging panel, Claire Matturo offered a powerful endorsement of the book in a CBC article: 

           "The Boat People” touched me, haunted me and educated me — in much
           the same way To Kill a Mockingbird did when I first read it 
           as an impressionable child," …..

"It's the kind of book I wish the whole world could read with an open mind and an open heart."

In the joint press release Bala is quoted as follows:

“Writing this novel was a meditation on empathy. My greatest hope is that it has the same effect on readers.”

Bala on her website added a statement on how she will be using the attention from the Awards to gain her attention in Canada’s political debates:

Refugee law, and in particular, the perfectly legal and legitimate process of coming to the border and seeking asylum, is a situation that is woefully misunderstood by the general public. It doesn’t help that so many Canadian politicians - many of them lawyers by training - willfully and purposely lie. Fiction can be the antidote, translating the letter of the law into a compelling plot and using imagined characters to show readers the truth. The truth is so important. This is a federal election year and now more than ever we all have a duty to tell the truth. Loudly. And as often as possible. Awards give me and my book a soap box and a megaphone. For these gifts, I’m incredibly grateful.

It is an excellent book forcing readers to think about refugee claimants. Much of the world has become resistant to claims.

Each year readers of the ABA Journal can vote on the Award. The winner of that voting process constitutes one vote on the voting panel. This year the votes were 43.88% for Class Action, 35.41% for The Widows of Malabar Hill, and 20.7% for The Boat People. 

Following my personal tradition once I have posted my review of The Widows of Malabar Hill I will write a post on which book I thought should have won the Award.

An Ending for The Boat People by Sharon Bala

This post definitely
contains spoilers. In particular, it discusses the ending of The Boat People by Sharon Bala.

The Boat People tells the story of 503 Tamils who, fleeing Sri Lanka, arrived off the coast of Vancouver Island. They faced rigorous examination of their refugee claims. The book focuses on the story of Mahindan, a mechanic, and his son, Sellian. As the story concludes Mahindan is about to enter an admissibility hearing that will determine if they are allowed to stay in Canada. To my surprise and regret Bala chose not to tell whether they succeeded.

On her website under the link for Contact Bala provides a link to FAQs where she states with regard to the ending:

Mahindan goes into the admissibility hearing ready to face the future head on. But Canada's refugee system is capricious. So much depends on individual adjudicators' good and bad moods, their ignorance and understanding.  Maybe Grace is feeling generous. Maybe she's in a foul mood ….

Mahindan's entire life has been a series of unlucky and lucky dice rolls. Stories are partnerships, co-created by writers and readers. I left the dice on the table for you to make the next roll. Put yourself in the adjudicator's uncomfortable shoes. You know what Mahindan's done and his motivations. Does he deserve to stay or be deported? You also know the forces and people working for and against him. You've met Grace and Fred Blair and Gigovaz and Priya. So also ask yourself: what do you think will happen to Mahindan and Sellian? Is it different from the judgement you would have made?

I decided to take up Bala’s challenge utilizing my experience as a litigator. I have written the judgment I believe Grace would have written. I took a look at a number of Immigration and Refugee Board decisions to have a sense of format and content. I took a look at Canadian court decisions on refugee appeals. I looked at international law on refugees. I sought to base the decision on the facts presented in the book and the law of Canada. My decision is condensed. A real decision would have been much longer and would be unlikely to have had case citations. Sharp eyed readers may notice that some of my case authorities were given after the time of the fictional admissibility hearing would have taken place. The principles quoted in my decision were already being considered at the time Grace would have been writing her decision. I have sent this post and my review of the book to Ms. Bala. If she responds and is willing I will post her reply.

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Between:

Canada (Citizenship and Immigration)

and

Poonambalan Mahindan and Sellian

Panel - Grace Nakamura
Counsel for the Minister - Ms. A. Singh
Counsel for the Persons Concerned - Mr. Gigovaz and Ms. P. Rajakaran

REASONS FOR DECISION

These are the reasons for a decision made under the provisions of the Immigration and Refugee Protection Act (hereafter referred to as the Act) concerning Mr. Mahindan and Sellian.

MINISTER’S POSITION

The Minister’s position is that Mr. Mahindan was a member or active supporter of the Liberation Tigers of Tamil Eelam (LTTE), an organization that engages, has engaged or will engage in terrorism.

In the alternative, it is the Minister’s position that Mr. Mahindan and his son, Sellian, are not in need of protection if returned to Sri Lanka.

MR. MAHINDAN’S POSITION

Mr. Mahnidan does not dispute that the LTTE is an organization that has engaged in terrorism, but denies being a member or supporter.

It is his position that both himself and his son qualify as refugees as they are in need of protection.

Mr. Mahindan submits that he should be reunited with his son, Sellian, and admitted to Canada.

DECISION

The Minister has provided information Mr. Mahindan, at his garage, worked on a bus on behalf of the LTTE that was then used in a terrorist bombing in Sri Lanka.

The Minister asserts that the actions of Mr Mahindan establish that he was either a member or active supporter of the LTTE.

Mr. Mahindan stated that he was under duress from the LTTE to work upon  the bus. He says if he had not worked on the bus he would have been subject to reprisals by the LTTE. He says that he never knew the bus was going to be used for a suicide bomb attack.

He continues that he was never a member of the LTTE nor a supporter of the organization.

The report filed by the Minister includes detailed information on the plans for the bus attack, the work done upon the bus and the actual attack.

What is absent from the report is that Mr. Mahindan was either a member or active supporter of the LTTE.

Ms. Singh asks that I draw an inference that his work upon the bus means he had to be a member or active supporter of the LTTE.

Ms. Rajakaran points out that such an inference would mean anyone who did work for the LTTE or supplied them with goods, including food, would be a member or active supporter.

Ms. Rajakaran submits that there must be proof of membership or clear evidence that Mr. Mahindan was more than a mechanic working on a bus.

I agree with Ms. Rajakaran. Suspicion is not proof. Canada has had a history in wartime of using suspicion of danger to justify punitive actions by governments. Our nation has learned, through painful experience, not to rely on suspicion. To use suspicion is to erode the Rule of Law which is at the heart of Canada’s legal system. I will not return to that dark time when suspicion was considered proof.

There are no records of Mr. Mahindan being a member of the LTTE.

No evidence has been presented that he was active politically. It his evidence, which I accept, that he had no interest in politics. 

I reject the Minister’s claim that Mr. Mahindan is a member or active supporter of the LTTE.

Mr. Mahindan asserts that he qualifies as a person in need of protection as he is at risk of torture or risk to his life or risk of cruel and unusual treatment or punishment if he is returned to Sri Lanka.

He refers to his work on the bus. He states the Sri Lankan government has punished Tamils whose work for the LTTE was subsequently involved in a terrorist attack.

He was among the Tamils present at the last stand of the LTTE. Mr. Mahindan has advised that he and his son were compelled by the LTTE to accompany them as they retreated. When Sri Lankan government forces overran the final stronghold it is well established that those who survived were suspected of being members of the LTTE. 

Most important he arrived in Canada on a cargo ship from Sri Lanka. Mr. Fred Blair, Minister of Public Safety,  has expressed his opinion that Tamil Tigers were among the passengers. 

By Mr. Mahindan’s presence on the ship he will be suspected by the Sri Lankan government of being a member of the LTTE. That conclusion is supported by the decision of X (Re), 2012 CanLII 100150 (CA IRB) where the Board found such suspicion existed for an applicant who had been a passenger on the Ocean Lady, a cargo ship containing Tamils which arrived off Canada in 2010.

In accepting Mr. Mahindan’s assertion he is in need of protection, I adopt the following statement from X (Re):

         The UNHCR Guidelines, issued two years ago in 2010, 

         specifically recommend ongoing protection for those persona 

         with the following profiles: persons suspected of having 

         links with the LTTE (emphasis added), journalists and other

        media professionals, civil society and human rights activists, 

        women and children with certain profiles, and lesbian, gay, 

        bisexual and transgender individuals. As I have found that this 

        claimant would be suspected of having links with the LTTE on 

        return to Sri Lanka, I have paid particular attention to risks he 

        might face.

The full text of the X (Re) decision can be found at:

https://www.canlii.org/en/ca/irb/doc/2012/2012canlii100150/2012canlii100150.html?searchUrlHash=AAAAAQARcmVmdWdlZSBTcmkgbGFua2EAAAAAAQ&resultIndex=7

A further consideration involves Sellian. I accept, as found in Kanthasamy v. Canada (Citizenship and Immigration), [2015] 3 SCR 909, 2015 SCC 61 (CanLII), that Sellian is at risk of discrimination as a young Tamil male if he were returned to Sri Lanka.

Further since the decision of the Supreme Court Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) it has been established law that "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them." I find it is in Sellian's best interests to stay in Canada.

Unity of the family is long established in international law. An example of that principle is to be found in the Final Act of the 1951 U.N. Conference of Plentipotentiaries on the Status of Refugees and Stateless Persons, Recommendation B:

B. "THE CONFERENCE,

CONSIDERING that the unity of the family, the natural 

and fundamental group unit of society, is an essential right of the

refugee, and that such unity is constantly threatened, and

NOTING with satisfaction that, according to the official commentary of the

ad hoc Committee on Statelessness and Related Problems 

(E/1618, p. 40) the rights granted to a refugee are extended to

members of his family
,

RECOMMENDS Governments to take the necessary measures

for the protection of the refugee's family, especially with a 

view to:

(1) Ensuring that the unity of the refugee's family is maintained particularly in 

cases where the head of the family has fulfilled the necessary conditions for 

admission to a particular country;

(2) The protection of refugees who are minors, in particular unaccompanied 

children and girls, with special reference to guardianship and adoption."

Mr. Mahindan has described the agonizing separation from his son for the many months of his detention. It is time for them to be together again as father and son. I find they are in need of protection and accept their applications as refugees.

Signed by Grace Nakamura

(The Government of Canada did not appeal Ms. Nakamura's decision. Mahindan and Sellian succeeded before the Refugee Board. They are doing well in Canada. Mahindan is working full time as an automotive technician and Sellian is happy in school.)

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Bala, Sharon - (2019) - The Boat People