On March 25, 2010, exactly three years ago today, special prosecutor, Richard Peck dropped the charges against, former Attorney General, Michael Bryant, in the killing of Darcy Allan Sheppard on the night of August 31, 2009.
Since that time Michael Bryant has written a book that paints himself as a victim and hero. In the past few days Sheppard’s father, Allan Sheppard Sr. released new documents that raise troubling questions regarding the investigation led by Peck and his agent, Toronto defence lawyer, Mark Sandler.
Bryant Watch looked at the new evidence including the police reconstruction report and cross referenced this evidence with media reports of the case, the court record and information revealed in Bryant’s book to come up with a timeline of the investigation.
This timeline raises even more troubling questions regarding Peck’s decision to drop the charges and avoid a messy trial involving the former leader of his employer in this case and two other cases for which he had recently been hired. This “independent” prosecutor seemed to have quite the case load with the office for the Attorney General for Ontario.
The following is a partial timeline.
On September 1, 2009 – Michael Bryant charged with criminal negligence causing death and dangerous driving causing death and released from custody without bail
September 1, 2009 – Bryant hires Marie Henein, another prominent member of the Toronto criminal defence bar, as his lawyer. Bryant says he and. Henein “agreed on a basic strategy within ten days of my release from jail.”(p.232)
Their strategy was to get the charges dropped and avoid a trial at all costs.
“When it came to getting charges dropped, obtaining watertight expert evidence was the linchpin. [more on this in another article later-ed]. The prosecution could drop charges only if we could present irrefutable forensic evidence from the finest experts we could find, backed up by peer-reviewed expert analysis, and bolstered by additional expert evidence surrounding it.” (p. 234)
Bryant’s and Henein’s determination to avoid court was all about public perception and his political career. It had nothing to with a strong case. How could it? They hadn’t even started to build their defence when they made this decision.
“But we knew exactly how the trial would go. Some days are good days for the defence but inevitably some are bad. In the early days the prosecution would present its case, including witnesses with perhaps damning testimony; sometimes there would be a break between the witnesses’ examination on the stand by the prosecutor and Marie’s cross-examination. If one of those breaks was at the end of the day, or before the noon-time broadcasts, then the news the next day would be the damaging assertions, only later dismantled by Marie. For those who tuned into the trial randomly, that day’s news would be all they remembered about the trial.” (p231)
October 2009 – Peck agrees to meet with Henein to discuss adding new charges. He agreed he wouldn’t do so until Henein had opportunity to talk him out of it. Bryant desperately doesn’t want a trial or any new charges added.
From 28 Seconds:
“However, in my case, adding charges would have been a disaster for me personally. There would have been an implicit suggestion of guilt had charges been added. Most people wouldn’t get the nuance of the fact that they were lesser and therefore inclusive of the original charges. They would come to the conclusion that I was somehow the author of my own misfortune-that somehow I’d done something wrong during those 28 seconds.” (p232)
October 19, 2009 – Crown representative Mark Sandler and Bryant attorney Marie Henein attend court with justice of the peace. Put over to November 16.
November 16, 2009 – Sandler and Henein appear in court and arrange to meet privately with Provincial Court Justice Paul Bentley, November 30
November 30, 2009 – Private meeting with Judge takes place
December 2009 – Henein, Sandler and Peck meet. Henein discloses some the defence’s case and persuades Peck not to add additional charges. Peck also agreed to allow Henein to make a full presentation in March 2010 to see if she can persuade him to drop all the charges.
THIS IS WHERE IT GETS INTERESTING
It is important to note that the police investigation was still ongoing in December. The police reconstruction report wouldn’t be finished until March 2010. There are important questions that need to be put to Peck and Sandler.
How could Henein have reasonably persuaded Peck without mentioning that Bryant claimed his car stalled? If she did mention it then did Peck or Sandler mention it to the police so they could do some testing to include in the reconstruction report? No testing of the Bryant’s car stalling was done although other testing of the car was done.
If Henein communicated this defence to Peck and he didn’t inform the police, it would show that he had no interest in challenging Bryant’s defence. If Henein didn’t communicate it to Peck, then Peck made his decision while thinking Bryant had no defence for his initial attacks on Sheppard.
Again, it is important to note that of the nineteen eyewitnesses NONE of them make any mention of Bryant’s car stalling even once never mind three times. All nineteen eyewitnesses are entirely consistent on this matter.
Question for Peck and Sandler:
When were you made aware that Bryant would base his defence around his car stalling at all three crucial times? When did you inform police investigators of this defence and how did you instruct them to investigate these claims?
January 22, 2010 – Henein and Sandler appear in court and report that they failed to meet for a case management session. They say they will do it March 5 and court is put over to the same day
March 5, 2010 – Henein and Sandler appear in court. Henein received the police reconstruction report which is the final major piece of disclosure. Case is put over until April 14.
March 2010 – Henein presented her evidence to Peck and Sandler
March 23, 2010 – Mark Sandler (not Richard Peck) interviewed Bryant and his wife without prejudice: not under oath, without cross-examination, and with the usual protections against self-incrimination guaranteed, if the case were to go to trial, and with their lawyers present. Police were also present but not permitted to ask questions.
Susan Abramovitch claimed not to remember much of anything that night. Abramovitch’s lawyer, former Ontario Chief Prosecutor, Douglas Hunt wrote a book with Sandler. Bryant had almost seven months to fit his testimony as best he could to all the evidence gathered.
However he could not refute the nineteen eyewitnesses some of whom were only a few short feet from Bryant and Sheppard.
March, April, and May 2010 – Bryant claims from 28 Seconds:
“Throughout March, April, and May, Peck and Sandler conducted their own investigation, with the police, of every aspect of the case. They interviewed our own witnesses, checking their accounts with the affidavits filed by Marie from the March presentation. They re-interviewed the Crown witnesses- those relied upon by police in laying the charges”. (p 275)
Bryant’s account contradicts what Sandler said in court on April 14, 2010 (below).
April 14, 2010 – Once again Henein and Sandler are in court but not Peck and Bryant. Peck reviewed the evidence against Bryant and decided a follow-up investigation was necessary. Sandler, representing the Crown informed provincial court Justice Paul Bentley that police would (note the future tense) be re-interviewing witnesses and conducting further forensic tests. Case is put over until May 25.
Note the date April 14. On May 21, Bryant would be informed that all charges were to be dropped. That did not leave time for much of an investigation.
Question for Peck and Sandler:
In court on April 14, Sandler reported that police would be re-interviewing witnesses. How many of the eyewitnesses who dispute Bryant’s version of events were re-interviewed? Bryant Watch is unaware of any of them being re-interviewed and in fact we know of more than one crucial eyewitness who was definitely not re-interviewed.
If we look at Peck’s presentation on May 25, 2010 it leads us to believe that only the defence witnesses that supported Bryant were re-interviewed. If this is true it shows that Peck and Sandler were not interested in investigating Bryant’s version of the events, they were only interested in conducting an investigation that could only have one conclusion, the exoneration of their colleague.
May 21, 2010 – Henein called Bryant to tell him Peck would be dropping all charges
May 25, 2010 – Peck and Bryant showed up in court for the first time. Peck dropped all the charges.