This is justice?

By Bob Mionske

Bicycling Magazine’s Road Rights, June 3, 2010

original piece is here

Lawyer Bob Mionske at Bicycling Magazine published this well written piece about the case today.

When a cyclist is killed by a driver, justice is nearly always stacked toward the driver. And in this case in Toronto, the scales were tilted even more than usual.

By Bob Mionske

On August 31, 2009, the worlds of two strangers collided in the posh Bloor Street shopping district of Toronto. In the aftermath, one of those strangers, a bicycle messenger, lay dead, while the other stranger, the former Attorney General of Ontario and a rising political star, stood accused of causing the cyclist’s death.

About a year later, on Tuesday, May 25, 2010, Richard Peck, the special prosecutor appointed to try the case, dropped all charges against Michael Bryant, the former Attorney General accused of causing the death of bicycle messenger Darcy Allan Sheppard.

I can’t say I didn’t see this coming.

From the beginning, this case involved more than just an encounter between a cyclist and a motorist gone awry. As I noted in When Worlds Collide , issues of race, class, and power were a subtext to this case from the moment that Bryant shut off his car’s ignition in the driveway of a luxury hotel, after fleeing the scene where Darcy Sheppard lay dying in the street.

With these undercurrents, it was apparent that no less than the rule of law was at stake in this case. As explained in an article by Rick Bernardi that appeared in Dandyhorse :

The rule of law means that a nation is governed by laws, rather than by the caprices of the powerful few. It means, among other things, that nobody, rich or poor, powerful or powerless, is above the law. It means that even the powerless can find justice under the law, and that even the powerful can be brought to justice. It’s an idea that is ingrained in western society.

No matter that Michael Bryant had been the former Attorney General; no matter that Darcy Allan Sheppard was a nobody born into a hardscrabble life on the wrong side of the tracks. Under the rule of law, Sheppard was to have his day in court, and Bryant was to be brought to justice and answer the charges against him. The rule of law also meant that Bryant would be presumed innocent until proven guilty, and that he would have his day in court as well. Because Bryant had been Attorney General, a special prosecutor was appointed to try the case, in order to avoid the appearance of impropriety that would have resulted had Bryant’s former employees tried the case against him. The investigation and prosecution of the case would be handled in adherence to the principles of the rule of law, and both Sheppard (through the Crown) and Bryant would have their day in court.

Only that day in court never came, for Sheppard or for Bryant. Standing before the judge Tuesday morning, special prosecutor Richard Peck explained , “if the prosecution determines there is no reasonable prospect of conviction then the charge must be withdrawn. This case falls short of that standard and I’ll explain why.”

Peck then delivered a summary of the case, including “in particular new information that has been discovered since the charges were laid.” The full explanation for the special prosecutor’s decision is contained in his Executive Summary , which basically argues that the prosecutor did not have evidence sufficient to contradict Bryant’s account of events, and that would be likely to result in a conviction. If he did not have sufficient evidence, it is reasonable for him to withdraw the charges. In fact, it is obligatory for him to do so, from an ethical perspective, and as a policy directive.

Nevertheless, Peck’s analysis of the evidence in this case is troubling for several reasons.

1. Sheppard had a prior history of altercations with drivers

Peck detailed Sheppard’s history of run-ins with drivers, as well as his criminal record involving acts or threats of violence. From this account, it is clear that Darcy Allan Sheppard had a history of violence and problems with anger management. Less clear is how issues of class and power have colored our perceptions of Sheppard’s past. The prosecution details six prior encounters with drivers, four of them occurring in the month Sheppard was killed. However, a nagging problem persists—Peck’s accounts only presented the drivers ‘ sides of these events. Sheppard’s perspective is missing, because he is dead. But included in the narrative are some tantalizing clues—a driver who cut him off. Another driver who cut him off. A driver on the wrong side of the road. A driver who honked his horn at Sheppard because he was riding in the center of the lane.

We’ve all experienced these types of incidents, and it’s not uncommon for cyclists to react with anger. It’s a natural response when you’re being bullied, or when your life is threatened. However, as I observed in my article, What is Road Rage? , “when you retaliate against a driver, you run the risk of being perceived as a mutual combatant—or worse, as the instigator—by the police, and ultimately, by a jury.” No matter how egregious the behavior of the motorists Sheppard had run-ins with, when he responded with anger, he became “the instigator” in the eyes of the non-cycling public, and in the eyes of the special prosecutor. This is partly what I mean when I say that issues of class and power have colored our perceptions. Cyclists are a small minority on the roads, and thus we are held to quite a different standard than drivers; motorists can plausibly deny aggressive behavior with the explanation that “it was an accident” or “it never happened,” while our response is seen as “aggressive confrontation.”

There’s another class and power dynamic at play in the aftermath of Sheppard’s death which we must also consider: no stone in Sheppard’s past has been left unturned, while Bryant has been given a free pass from such scrutiny. One example: rumors of Bryant’s own propensity for hotheadedness have been circulating on the Web since Sheppard’s death, and yet there’s no indication that the special prosecutor investigated Bryant’s past for evidence of problems with anger management. It’s as if Sheppard, rather than Bryant, was on trial.

The outcome of this one-sided investigation was predictable—the special prosecutor concluded that Sheppard’s “prior history circumstantially supports the events as described by Mr. Bryant and his wife.”

2. Sheppard’s Drug and Alcohol Issues

In addition to Sheppard’s prior run-ins with drivers, the prosecutor made note of Sheppard’s problems with drugs and alcohol. The night Sheppard was killed, his blood alcohol level was 0.183, over twice the legal limit for driving. For Peck, this suggested that “intoxication may well have played a role” in Sheppard’s, “belligerent and aggressive” behavior the night of his death. It may well have. However, it must be pointed out that the police only conducted toxicology tests on the dead cyclist. No tests were conducted on the driver who stood accused of killing the cyclist. While the police noted that Bryant did not appear to have consumed alcohol, no tests for other substances were conducted. The toxicology report invites us to conclude that Sheppard, and Sheppard alone, was intoxicated that August night. However, the failure of the police to conduct toxicity tests on Bryant doesn’t mean that Bryant was not under the influence; it merely means that he was not tested.

Furthermore, the prosecution presented evidence of Sheppard’s, “serious drug and alcohol issues,” as part of the, “prior history that circumstantially supports the events as described by Mr. Bryant and his wife.” But this raises a question: If substance abuse was relevant to supporting or contradicting Bryant’s account of his encounter with Sheppard, shouldn’t Bryant also be investigated for any history of alcohol and drug abuse? After all, it stands to reason that Bryant’s history—and his condition the night of the Sheppard’s death—would be relevant in determining whether there was circumstantial evidence to support eyewitness and video evidence contradicting Bryant’s account of his own behavior that August night. Instead, as with the toxicology report, we are invited to conclude as a result of this one-sided investigation that only one of these men had a history of substance abuse. Once again, Bryant has been given a free pass from the scrutiny that Sheppard was subject to. Once again, it is as if Sheppard, rather than Bryant, was on trial.

3. Eyewitness accounts and forensic examinations

Sheppard’s prior history is one leg of support for Peck’s conclusion that Bryant’s account of events that night is a complete and truthful narrative. The second leg of support on which Peck rests his conclusion is the eyewitness accounts, coupled with the forensic examinations. Although this is a double-edged sword, Peck wields it deftly, bolstering the conclusions of forensic experts with eyewitness accounts when the eyewitnesses and the experts are in agreement, and discounting the eyewitness accounts when they contradict the experts.

Thus, when the eyewitnesses and experts agree, Peck notes that, “several of the eyewitnesses describe Sheppard acting very aggressively and angrily throughout the incident…the accounts of the eyewitnesses coupled with the forensic examinations suggest that Mr. Sheppard was attempting to enter the vehicle and attack Mr. Bryant at this time.”

However, when the eyewitnesses and experts disagree, Peck dismisses the eyewitness accounts, observing, for example, that, “although certain eyewitnesses believed that the vehicle was driving at speeds of 60-100 km/hr, expert analysis conducted by both the Crown and the defense has determined that the average speed of the vehicle was somewhere in the range of 34 kph (21 mph).”

Similarly, Peck points out that, “although certain eyewitnesses described the vehicle as swerving and driving onto the sidewalk in an attempt to dislodge Mr. Sheppard, forensic examination has demonstrated that the Saab did not rub against the curb or mount the curb at any time.”

It’s a basic trial strategy for attorneys to emphasize the evidence that best supports their case, while discounting the evidence that contradicts their case. What’s unusual here, though, is that the prosecution , charged with pursuing a conviction of the accused, is highlighting the evidence that best supports the defense , and discounting the evidence that best contradicts the defense.

This selective use of eyewitnesses is not the only problem raised by Peck’s analysis:

Peck notes that Sheppard was “acting aggressively and very angrily” throughout the incident; the incident Peck refers to began, of course, with Bryant running Sheppard down and then attempting to flee the scene . Does it seem surprising or unusual that somebody would be “very angry” under those circumstances? Remarkably, in complete defiance of the facts, Peck argues that Sheppard “was agitated and angry, without any provocation from Mr. Bryant or his wife” [emphasis added].

Contrasting Sheppard with Bryant, Peck states that, “one of the largely consistent themes is that Mr. Sheppard loudly and aggressively confronted Mr. Bryant while he and his wife remained passive” [emphasis added]. This is another instance where eyewitness accounts that contradict Bryant’s defense are completely ignored by the prosecution. In the immediate aftermath of Sheppard’s death, television news crews interviewed eyewitnesses, including one witness who gave this account :

Reporter: “What kind of person would do that?” [i.e., drive aggressively to dislodge Sheppard]
Witness: “He was yelling pretty loud, and he sounded very, very angry, kind of road rage, but, honestly, someone that’s really, I don’t think all there….” Reporter: “The guy in the car was yelling?”
Witness: “Yeah.”
Reporter: “What was he yelling at, the cyclist?”
Witness: “Yes.”
Reporter: “Tell me about that.”
Witness: “All I heard was some loud yelling, and then screeching tires, that’s when we turned around and then the car took off down the wrong side of the road trying to go and hit him off the poles for probably about a hundred meters.”

Peck argues that, “although certain eyewitnesses believed that the vehicle was driving at speeds of 60-100 km/hr, expert analysis conducted by both the Crown and the defense has determined that the average speed of the vehicle was somewhere in the range of 34 kph (21 mph).” The problem with this argument is that it doesn’t tell us what Bryant’s top speed was; instead, it invites us to assume that Bryant’s average speed was his top speed, when in fact we should be asking whether it might be possible that the eyewitnesses are right about Bryant’s top speed, and that the forensic experts are right about Bryant’s average speed, starting from a dead stop, over the course of 100 meters.

4. Sheppard’s intent to attack Bryant

Based on “the accounts of eyewitness coupled with forensic examinations,” the prosecution speculates that Sheppard intended “to enter the vehicle and attack Mr. Bryant.”

So maybe one could speculate, based on whatever eyewitness accounts and forensics evidence may exist, that Sheppard “intended” to attack Bryant. That could be true. But one could also speculate that Sheppard “intended” to prevent Bryant from fleeing. Eyewitness accounts and video evidence were clear about what happened: After hitting Sheppard with his car, Bryant backed up, put his car into gear, and began to flee. It was only after Bryant began to flee that Sheppard gave chase and “latched onto” Bryant’s car. And in fact, Sheppard’s own words to Bryant—“You are not going to get away that easy”—support the conclusion that Sheppard intended to prevent Bryant from fleeing. Whether he also intended to attack Bryant once the car stopped is purely a matter of conjecture.

5. Bryant’s Account

Bryant’s own account of events that August night can be boiled down to three main points: (1) He accidentally collided with Sheppard because his car stalled; (2) Sheppard became enraged and attempted to enter Bryant’s car and attack him; and (3) Bryant and his wife were in a state of fear and panic, and attempted to get away from Sheppard.

In the eyes of the special prosecutor, Sheppard’s prior history of violence and altercations with drivers, and his intoxication, were circumstantial evidence in support of Bryant’s account. Further support of Bryant’s account came from eyewitnesses and forensic examinations conducted by both the Crown and the defense. In his summary, Peck stated that, “based on all of the evidence, the account provided by Mr. Bryant and his wife cannot be discounted or rejected when viewed in the context of the prosecution’s burden of proof. In fact, Mr. Bryant’s account finds circumstantial support in other reliable evidence.” The prosecution, Mr. Peck was explaining, did not have evidence that would contradict Bryant’s account and that would likely result in a conviction.

What was most remarkable, however, was not the prosecutor’s decision that he could not win the case. It was Peck’s obligation to determine whether he had the evidence to go forward with his case, and in fact, prosecutors regularly make determinations as to whether they have sufficient evidence to get a conviction. But Peck went further, seemingly taking on the role of defense attorney and presenting Bryant’s defense to the Court.

And so, the charges were withdrawn. Under the rule of law, both Michael Bryant and Darcy Allan Sheppard were entitled to their day in court. Although Sheppard was unable to tell his side of the story, the prosecution was supposed to present its case against Bryant, which in effect would get Sheppard’s story before the court. In turn, Bryant would have the right to counter the prosecution, and if he chose, to tell his own story in court. Witnesses would be examined and cross-examined. Evidence would be weighed and tested. How would it have been decided? That is a question that will never be answered.

Let’s be clear about this: By all accounts, Darcy Allan Sheppard was no choirboy, and he’s certainly not the ideal poster child for bicycle justice. His is a cautionary tale. But let’s also be clear about this: There were two men involved in an altercation on Bloor Street on the night of August 31, 2009. Only one of them was investigated, only one was put on trial. On Tuesday morning, the other man walked free.

4 Responses to This is justice?

  1. Barry says:

    Isn’t there an ombudsman or panel that can determine whether a prosecutor has made a mistake? This seems like either favoritism or gross incompetence coming into play. Peck was not behaving like a prosecutor, but instead he was acting like his role was to defend Michael Bryant. It’s not fair that he has played judge jury and executioner and determined that Sheppard somehow deserved his fate.
    Peck’s conduct in this case should be investigated. For someone who was supposed to be impartial because he wasn’t from Ontario, he sure did have a similar background to the person he was prosecuting.

  2. Zugzwang says:

    From the website of the Ontario Ministry of the Attorney General:

    “However any decisions relating to the conduct of individual prosecutions must be the Attorney General’s alone and independent of the traditional Cabinet decision making process. In practice, in the vast majority of cases, these decisions are made by the Attorney General’s agents, the Crown Attorneys.
    An important part of the Crown’s – and thus the Attorney General’s – responsibility in conducting criminal prosecutions is associated with the responsibility to represent the public interest – which includes not only the community as a whole and the victim, but also the accused. The Crown has a distinct responsibility to the court to present all the credible evidence available.
    The responsibility is to present the case fairly – not necessarily to convict. This is a fundamental precept of criminal law, even if it is not a particularly well-understood concept among the general public. One of the Attorney General’s responsibilities in fostering public respect for the rule of law, is to assist the public in understanding the nature and limits of the prosecutorial function.
    Ultimately the Attorney General is accountable to the people of the province, through the Legislature, for decisions relating to criminal prosecutions. Such accountability can only occur, of course, once the prosecution is completed or when a final decision has been made not to prosecute. The sub judicae rule bars any comment on a matter before the courts that is likely to influence the matter. The sub judicae rule strictly prohibits the Attorney General from commenting on prosecutions that are before the courts. Given the stature of the Attorney General’s position, any public comment coming from the office would be seen as an attempt to influence the case.
    Although the Attorney general can become involved in decision-making in relation to individual criminal cases, such a practice would leave the Minister vulnerable to accusations of political interference. Accordingly, it is traditional to leave the day-to-day decision-making in the hands of the Attorney General’s agents, the Crown Attorneys, except in cases of exceptional importance where the public would expect the Attorney General to be briefed.”

  3. jan says:

    I still believe strongly that the Crown should have had Bryant take the stand and give his account of events prior to making a decision to drop this case.

    At a minimum it would have cleared the air of the tainted view that an ‘exit’ had been arranged for the defendant in this motor vehicle related death of a cyclist. That there was no testimony forthcoming from Bryant only entrenches a view that he was guilty and was advised not to take the stand and testify under oath.

    In my opinion this appears to have been an engineered story constructed by Bryant’s friends at the Navigator PR firm which provided the accused freedom without any legal consequences.

    It’s a bad day for the Canadian way and a great deal of accountability lies with the justice system.

    My most heartfelt condolences to Darcy Sheppard’s family.

  4. Joe Gillies says:

    As a car driver, I have been told and made to know that if I hit a car or anything else in fromt of me causing any accident that I am at fault by the law. Thus, if I rear end someone or something then I am automatically at fault because it is my responsibility as a driver to keep back some distance in order to be able to stop safely. It appears that a bike was rear ended here and that someone was hit by being rear ended and knocked on the hood of a car and off on to the road by a driver that did not properly control a car safely (accidentally or intentionally) and even tried to drive around a bike to get away from a collision. This caused everything else to happen. Rear ending anyone or anything makes the person doing it guilty no matter what even if one’s car has car trouble stopping or even if it was bad weather. Many people have been charged for doing much less such as hitting a tree or post by losing control of one’s car accidentally. Am I mistaken in assuming that I am responsible for controlling and maintaining my vehicle as best as possible so that I don’t rear end anyone whether accidentally or intentionally?

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