Wednesday, October 8, 2014

Oscar Pistorius: Canadian lawyers indict Prosecutor Gerrie Nel for turning the trial into, "a study in lawyer theatrics instead of dignified advocacy." The authors cite numerous examples of misconduct by Pistorius's prosecutor, including one of particular interest to the readers of this blog: questioning him about points his lawyer did not pursue with a prosecution expert. (Must Read, HL);

STORY: "Did Oscar Pistorius get a fair trial," by   Frank Addario and Sarah Rankin, published  by the Ontario Bar Association  on September 29 2014. Frank Addario  is a principal of the Addario Law Group ( where he has a trial and appellate practice devoted to criminal, constitutional and regulatory law. (He is also my friend and respected colleague).  Sarah Rankin completed her JD and MA in Criminology and Sociolegal Studies at the University of Toronto in 2014. She is articling at Addario Law Group and will clerk at the Alberta Court of Appeal.

GIST:  "Olympic Athlete Oscar Pistorius shot and killed his girlfriend, Reeva Steenkamp. His sensational trial was destined to be controversial. But, marred by prosecutorial misconduct the trial was a study in lawyer theatrics instead of dignified advocacy. The culprit was South Africa’s famous “Pit Bull”, Gerrie Nel. Nel’s approach to his job was jarring because it was so at odds with the Canadian legal tradition. Nel repeatedly signaled he was invested in a conviction, a posture incompatible with the Canadian legal rule that the Crown Prosecutor never wins or loses. Nel lectured as much as he questioned. “You killed Reeva Steenkamp,” he began. “Say it” (details). Nel insulted Pistorius and repeatedly editorialized about Pistorius’ evidence. He screened footage of Pistorius shooting at watermelons with friends, then badgered Pistorius to look at a photograph of Steenkamp’s wounded head and compared her injuries to the exploded fruit.
Pistorius at times vomited and wept in response. While Canadian law assumes this type of conduct is unfair, Pistorius’ trial judge took careful notes during Nel’s performance. “You will blame anybody but yourself,” Nel lectured Pistorius. “You are lying. You just refuse to take responsibility for anything.” Nel’s contempt for Pistorius was palpable as he laughed at Pistorius’s answers.
This approach to lawyering would be out of bounds for a Canadian prosecutor. While entitled to be energetic advocates, the Crown may not pursue a conviction at any cost. The system is adversarial, not antagonistic.  Canadian prosecutors are trained that they are ministers of justice duty-bound to approach their role with integrity and fairness.........While cross-examining Pistorius about his ammunition storage practices, Nel questioned him about legal advice he received. He demanded Pistorius explain why a lawyer would give him that advice. He also asked Pistorius about points his lawyer did not pursue with a prosecution expert. These questions are logically improper since a defendant hires a lawyer precisely because he recognizes the lawyer’s strategic expertise.  Solid convictions have been overturned where the Crown suggested a defendant is responsible for tactical decisions by his lawyer.".........An insistence in Canada on civility should not be confused with a concession that lawyers be less courageous.[1] Criminal trials are no place for lawyers fretting about their popularity. But skilled lawyers are able to keep zealous advocacy[2] in place as their primary guide without personalizing litigation.  The Pistorius trial was an example of abusive lawyering at its worst."
The entire commentary can be found at:


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