On Witness Preparation

Patrick J Ducharme
Patrick J Ducharme

The importance of the preparation of witnesses cannot be overstated. Most cases, in fact, turn on the performance of the witnesses. But there is no foolproof formula or method to prepare witnesses for trial. They come to us in all types and fashions, and many are, to say the least, a challenge. Some communicate easily and well, others only grudgingly and in monosyllabic grunts. Patience and preparation are all.

Witness preparation, difficult as it may be, is the first important step to changing the level of your success at trial.

We want our witnesses to be poised and confident and to possess great nimbleness of mind. The best way to approximate this ideal state, once all the facts have been gathered, assimilated, and represented in your trial brief, is to subject all potential witnesses, including experts, to an interview process no less rigorous than that of a cross-examination by a skilful prosecutor. The exercise will pay dividends because it familiarizes the witness with an important part of the trial experience and demystifies the process of cross-examination, calming the witness’s fears.

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Meeting the Client’s Witnesses: Be Patient, Be Supportive

Patrick J Ducharme
Patrick J Ducharme

So far as practicable, you should try to provide the same sort of empathy and support to the witnesses who may be called in support of your client. They too feel vulnerable when they deal with lawyers. Who doesn’t? But witnesses feel more than usually threatened. Except for the fear of punishment that the accused alone may face, witnesses consider that they are very nearly in the same position as the accused. They are unfamiliar with and usually frightened of the trial process, so they are reluctant to be involved. They need to be made to feel that the lawyer has taken into account their interest as well as those of the accused. They must come to see that the lawyer representing the accused is competent to handle the trial and to present them before the court without causing them humiliation or terror.

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Former coach denies wrongdoing

Windsor Star.

In video of police interview, accused says his intent with victim was not sexual

 

 

Former gymnastics coach Dave Brubaker, right, leaves the courthouse with his lawyer Patrick Ducharme in Sarnia following the first day of testimony in Brubaker’s sexual assault trial.
GEOFF ROBINS/THE CANADIAN PRESS Former gymnastics coach Dave Brubaker, right, leaves the courthouse with his lawyer Patrick Ducharme in Sarnia following the first day of testimony in Brubaker’s sexual assault trial.

 

Arrested and charged, former national gymnastics coach David Brubaker sat across from a Sarnia police officer in a sterile interview room trying to come to terms with his disgraced future. But, even after more than an hour of questioning from an officer who had his own conflicts in the case, Brubaker never wavered from one crucial fact.

I will die knowing that my intentions were never sexual or that my intentions were never to make her feel uncomfortable,” the 55-yearold former executive director of Bluewater Gymnastics told the officer in a videotaped interview about the gymnast complainant in the historical sexual assault case. On the second day of the trial of the high-profile Sarnian, it became more apparent the case is complicated. Continue reading “Former coach denies wrongdoing”

Former gymnastics coach says he ‘crossed a line’ but had no sexual intent with trainees

CTV News.

Dave BrubakerFormer gymnastics coach Dave Brubaker, right, leaves the court house in Sarnia, Ont., Tuesday, October 23, 2018 following the first day of testimony in his sexual assault trial. THE CANADIAN PRESS/Geoff Robins

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Nicole Thompson, The Canadian Press
Published Wednesday, October 24, 2018 12:41PM EDT
Last Updated Friday, December 14, 2018 4:09PM EST

Editor’s Note: In stories about the trial of former high-ranking gymnastics coach Dave Brubaker, The Canadian Press incorrectly said he pleaded not guilty to one count of sexual assault and one count of invitation to sexual touching. In fact, Brubaker pleaded not guilty to one count of sexual assault and one count of sexual exploitation.

SARNIA, Ont. — In a letter written shortly after his arrest, a former gymnastics coach accused of sexually assaulting a young gymnast years ago apologized for “crossing the line” but insisted his actions were not sexually motivated.

Dave Brubaker penned the letter to the complainant, now a woman in her 30s, during a videotaped interview with police that was played at his sexual-assault trial in Sarnia, Ont., on Wednesday.

“I have reflected on all the things uncovered … in the social media and the .MeToo campaign,” Brubaker said in the letter that was also addressed to his wife and another gymnast. “I am guilty of crossing the line, but I want you all to know that my intentions were not sexual or premeditated.”

The former director of the women’s national gymnastics team has pleaded not guilty to sexual assault and invitation to sexual touching at his judge-alone trial. The charges relate to alleged incidents between 2000 and 2007.

In the police interview, Brubaker said people’s expectations and standards of behaviour had changed since the complainant left the sport at age 19.

“We kind of reflected on a lot of things and we knew that we couldn’t carry on and we had to make changes,” he told police. “Not just us but the whole sport.”

The woman has testified that Brubaker would kiss her on the lips to say hello and goodbye starting when she was 12 years old, and touch her inappropriately during sports massages. Brubaker said he thought he was being a supportive coach and denied any sexual intent.

“I thought I was doing the right thing to help them,” he said. “I can see that, by today’s measures, it’s different.”

The complainant also said Brubaker would pick her up from school, and take her to his house, where he occasionally would spoon her in bed and tickle her belly, before driving her to practice. Brubaker told the officer he didn’t remember doing that.

Brubaker also distanced himself from other prominent men in the world of gymnastics who faced allegations of sexual assault or misconduct — among them Larry Nassar, a former U.S. sports doctor sentenced to 40 to 125 years in prison for sexually abusing hundreds of girls.

“I just don’t want to be painted with that same brush, because I don’t have those same intentions,” Brubaker said in the police interview.

The judge presiding over the case is considering whether to allow Brubaker’s interview into evidence after court heard the interviewing officer is related to the complainant.

The officer, who cannot be named to protect the identity of the complainant, testified he told the prosecution about the relationship and had received approval from his superiors before embarking on the investigation.

Defence lawyer Patrick Ducharme, however, suggested the officer tried to hide the connection. The officer, the lawyer said, never mentioned the relationship in his notes and the defence only learned of it three days before the trial was set to begin.

“People like me like to know that the only investigating officer is related to the complainant,” Ducharme said.

The officer contended he didn’t note down his relationship with the complainant because he knew Brubaker would see the notes and didn’t want the relationship to affect what the coach told police.

“I wanted to get a confession without the taint of him knowing I was related by marriage,” the officer said in court.

The revelation of the officer’s ties to the complainant delayed the trial by a day as Ducharme re-evaluated the evidence and considered how it would affect the case. In court, he suggested it amounted to a conflict of interest.

When the officer said he believed what the complainant told him, Ducharme responded: “Why wouldn’t you? She’s the godmother of your child.”

The case has been adjourned to Dec. 13.

Sex offences trial delayed in Sarnia for former Olympic gymnastics coach

London Free Press.

Dave Brubaker. (File photo)

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SARNIA – The trial of a former Canadian national gymnastics coach charged with sex offences didn’t get off the ground as scheduled Monday and won’t be finished this week.

A last-minute issue came up that forced both Lambton County Crown attorney David Rows and defence lawyer Patrick Ducharme to request an adjournment until Tuesday at the trial of David Brubaker, 55, the Bluewater Gymnastics coach.

Brubaker is facing 10 charges, all sex-related, in connection with a 16-year-old girl between 2000 and 2007.

Rows told Ontario Court Justice Deborah Austin that “an issue arose on Friday afternoon” and the information was relayed to Ducharme, with more sent to him on Saturday.

 

Ducharme said the new information “is dramatic enough that it impacts on every aspect of the evidence in the trial.”

He wanted more time to prepare. He also said the three days set aside for the trial weren’t likely to be enough and asked that two more days at a later date be added to the trial schedule.

Two civilian witnesses who are expected to testify were told of the adjournment by the Crown and agreed they’d be available to testify Tuesday.

Brubaker was the director the of a local gym for more than 30 years.

He’s charged with one count of inviting sexual touching and three counts each of sexual interference, sexual exploitation and sexual assault.

Related

He was also a coach for the Canadian women’s gymnastics team at the 2012 and the 2016 Summer Olympics. He also served as the women’s team director at the 2017 world championships in Montreal.

Brubaker was placed on an unpaid leave after he was charged in December 2017. He no longer works for the Bluewater club.

He’s been on bail since his arrest on terms that include he stay away from 23 named people, including the complainant.

jsims@postmedia.com

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Judge finds driver not guilty in death of skateboarder

Windsor Star.

Brandin Crosier was not guilty of criminal negligence and dangerous driving when he struck skateboarder Adam Pouget on a foggy road in Amherstburg in November 2016, a judge ruled Monday.

There was stunned silence after Ontario Court Justice Sharman Bondy gave her decision. Then the sobs of Pouget’s family and friends filled the Windsor courtroom.

The prosecution failed to prove Crosier’s attempt to pass a vehicle on County Road 18 in the fog on the morning of Nov. 17, 2016, made him guilty of either criminal charge, Bondy said. When Crosier moved over to pass, his 2011 Ford Focus struck Pouget, who was skateboarding in the opposite direction.

Continue reading “Judge finds driver not guilty in death of skateboarder”

Driver Found Not Guilty In Crash That Claimed Amherstburg Man Skateboarding To Work

AM800 News.

An Amherstburg man has been found not guilty in a crash that claimed the life of a father of four children who was skateboarding to work.

Brandin Crosier, 24, had been charged with criminal negligence causing death after he struck Adam Pouget on a foggy morning in November 2016.

He was also found not guilty of the lesser offence of dangerous driving causing death. Continue reading “Driver Found Not Guilty In Crash That Claimed Amherstburg Man Skateboarding To Work”

Building trust between client and attorney

Patrick J Ducharme
Patrick J Ducharme

How does one build the trust that is required between client and attorney?

Surprisingly, most individuals, unique as they are, have very similar needs, especially when they come to lawyers for help. They need to feel, for example, that their lawyer is eager to take their case. They need to believe that their lawyer is prepared to defend the case fearlessly. You will satisfy this need not only by knowing the client but by “seeing” the case, at least initially, from the client’s perspective, not yours.

Knowing the client, building the trust, involves small steps, none costly. Treat the client like a treasured member of your family. Greet him personally when he arrives at the office rather than dispatching a staff member to fetch him from the waiting room. If someone told you that your mother or father had just arrived in your waiting room, would you send a staff member to get them and bring them to you? Once in your office, remember that the desk itself is a barrier. Remove all barriers metaphorically, if not literally. Ask the question, and mean it: How can I help you?

In this way, the first meeting is always friendly, non-threatening. Some lawyers, not wanting to waste time (“Time is money”), use the first meeting to immediately challenge the client’s story, looking for weaknesses in it, trying to determine what the defence strategy might ultimately be. Patience, I say. There will be plenty of time for critical inquisition later. The first meeting requires more understanding, more listening, more learning.

I am not suggesting here that there can be no discussion whatsoever of fees during the first meeting. But if they are discussed at all, the discussion should occur at or near the end of the meeting. And it should be premised on the client’s need to know the business arrangements, because obviously a major concern of every client is the cost of the service provided. The client wants, needs and deserves to have this information. And that should be the spirit in which it is given. Never, ever, should the premise be that the lawyer does not trust the client and therefore needs certain commitments from the client “up front” or the lawyer will show him the door.

This is an excerpt from Patrick Ducharme’s book.

Meeting the Client: Be Interested, Stay Interested

A common complaint against criminal trial lawyers is that, at bottom, they tend to show little empathy for their clients. We are said to show more concern for ourselves, and our fee, than for the person who, after all, stands accused of a crime and faces the daunting power and authority of the police and prosecution. It may be true: the longer the lawyer toils away at this business, the greater the possibility that the lawyer will be insensitive to the particular plight of the individual charged.

The reason is that while clients come and go the lawyer’s daily experience remains relatively the same. And the more experience the lawyer acquires the less intimidating, the more routine, is the entire trial process. It is not arrogance or indifference which sets in, but the appearance of them. Hence, my first suggestion: be interested, stay interested. No matter how familiar the accused or the offences charged, try to know the client. Really. Know who that person is.

Someone once said that every human being has a thousand faces. Every human being is special and unique. What’s special about your client? Only when you know this should you concern yourself in detail with the manner and timing of the payment of fees. Build trust with the client. When you do, how and when you will be paid will be a natural part of the relationship.

This was an except from my latest book.

* In the next excerpt, I will answer the question “How does one build the trust”?

Jail guards to stand trial for alleged role in death of Ontario inmate

Corrections officers Leslie Lonsbary and Stephen Jurkus were charged with failing to provide the necessaries of life after 29-year-old Adam Kargus was beaten to death by his cellmate at the Elgin Middlesex Detention Centre in October 2013.

A lower court stayed the charges against the two officers in February 2017, ruling that the case against them had eclipsed the 30-month time limit for trials set out by the Supreme Court of Canada.

Crown prosecutors appealed that decision, arguing the judge made errors in her analysis of the time-frame rules, which allow certain types of delays to occur without counting toward the 30-month limit.

In a decision released Monday, the Ontario Court of Appeal found in favour of the Crown, saying the lower court judge had miscalculated the total delay in the case.

“There was no unreasonable delay,” Justice Michal Fairburn wrote in a decision agreed to by fellow justices Sarah Pepall and Robert Sharpe. “I would … lift the stays of proceedings and remit the matter to the Superior Court of Justice for trial.”

Lonsbary and Jurkus were on duty at Elgin Middlesex the night that inmate Anthony George beat Kargus to death in a jailhouse shower stall.

The beating lasted about an hour and was so loud that an inmate on the floor below could hear “excessive banging,” Fairburn said in her decision.

Kargus screamed for help, but guards did not respond until his body was found the next morning, the justice added.

George pleaded guilty to second-degree murder last year in connection with Kargus’ death, and was sentenced to life in prison with no chance of parole for 10 years.

The appeal court’s decision focused largely on evaluating delays in the case.

Delays that were caused by the defence, and delays that were caused by “exceptional” circumstances — which can include specific incidents or the general complexity of the case — do not count toward the 30-month ceiling for criminal proceedings, Fairburn said in her decision.

Among the time not properly taken into account by the lower court judge was a “three-month delay generated by the need for an additional day to complete the preliminary inquiry,” Fairburn said.

Two “critical” events occurred that necessitated the extra day of inquiry: the Crown dropped their charge against a third Elgin Middlesex guard who was then added to the prosecutors’ list of witnesses, and Lonsbary’s lawyers decided to add their own new witness to the defence list.

“Courts must be prepared to respond promptly and effectively to unexpected or unavoidable delays in criminal trials,” Fairburn said. “However, I am not satisfied that the court was responsible for the three-month delay in this case.”

Once the relevant delays are properly subtracted from the total time elapsed, the case against Lonsbary lasted just below 30 months and, although the case against Jurkus lasted three weeks longer than the limit, the difference can be excused because of the complexity of the case, Fairburn said.

Jurkus’ lawyer voiced his disappointment with the ruling.

“I believe that there was ample evidence before the Court of Appeal to uphold the decision of the trial judge that the case was unreasonably delayed … through no fault of the defence,” Patrick Ducharme said.

“I will seek instructions from my client as to whether or not we should seek leave to appeal to the Supreme Court of Canada, or, proceed to trial.”

Lonsbary’s lawyer, Jill Presser, said she would review the decision and “carefully consider all of his legal options.”