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The View From Up North: Jian Ghomeshi's Pre-Trial Foreplay

A salacious case offers a window into crisis management and the challenges faced by lawyers handling high-profile matters.

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Marie Henein is a superstar criminal lawyer in Toronto. Jian Ghomeshi is the current media whipping boy, making headlines for sensational allegations about his progressive sex life.

A few weeks ago, Heinen spoke in front of a (likely drunk) crowd of 450 lawyers and judges at a law gala. She zipped off this zinger: “As criminal lawyers we represent people who have committed heinous acts. Acts of violence. Acts of depravity. Acts of cruelty. Or as Jian Ghomeshi likes to call it, foreplay.”

That drew huge laughs. And in possibly the starkest example of Ghomeshi’s masochistic zeal, he retained Henein as his defence lawyer a few days after she made him a punchline.

Most of you know the sordid backstory….

In October, Ghomeshi’s employer, the CBC, terminated the radio host amid fuzzy allegations. Jian and his P.R. team immediately went on the attack to paint him as a dude who’s mildly adventurous in the boudoir, sometimes engaging in tickle-fights with fully-consenting women. Not long after, at least nine women came forward to allege that Jian defines consent as “punch now, ask permission later.”

I have an observation. First, Ghomeshi has engaged in an amazing P.R. battle to get out in front of the story and to protect his once-flawless image as a charming host of a widely respected radio program. He has maintained his innocence throughout. He has claimed he only engages in consensual beatings. He filed a $55 million lawsuit against the CBC to express his outrage at how terribly his ex-employer has treated him. Then, he hired Marie Henein, perhaps the best criminal defender in Canada, as his lawyer.

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To date, Jian has not been charged with any crime.

Can you say, “mixed messages”? If he’s innocent, why did he hire Henein? Ponder on that for a minute.

I think the public has already tried Jian and found him guilty. There’s too much smoke to ignore. There could possibly be handcuffs in his future — if he ends up being shepherded off to jail.

Which brings me to the question: if all this leads to criminal charges, how can Ghomeshi get a fair trial after the incredible amount of negative press? And, more interestingly, what are the strategic considerations Marie Henein must deal with: (i) because her client is now infamous worldwide; and (ii) the media will descend on any Ghomeshi trial like a pack of hounds?

To get some guidance on the subject, I chatted with a couple of lawyers. One is a criminal lawyer in the Toronto area who shall remain nameless to protect your innocence. We’ll call him “Mr. X”. The other is Earl Levy, Q.C. He’s a prominent criminal lawyer who defended Werner Gruener during the internationally reported Shoeshine Boy Murder in 1977. If anybody knows what it’s like to deal with intense media scrutiny during a trial, it’s Earl.

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Here are some of the considerations for lawyers with high-profile clients to consider:

1. The defence lawyer has to control the case. I don’t personally know Ghomeshi, but he has engaged in an aggressive offensive to rehab his image. I get the sense from how he’s acted and from what I’ve read he might be as controlling outside the bedroom as he is inside it. To the extent he’s an alpha dog, Earl warns that Marie Henein must be in charge of the case. Ghomeshi must listen to her and trust her. There are fundamental decisions only he can make—accepting a plea deal, for example. But, outside of those fundamental decisions, Earl warns of potential disaster for a controlling client who might think he knows better how to deal with the justice system than his defence lawyer.

2. Henein and the media. Should Henein be part of the aggressive media strategy to rehab her client’s image? We all know reporters look for entertaining stories and are not necessarily concerned with the ultimate truth. Earl feels Henein should avoid the press to extent possible. It’s too tricky. The questions in this case will be sensational and embarrassing. Answering a question incorrectly can do great damage. Deciding to evade certain questions with a “no comment” can be just as damaging. It’s a no win for Henein. Earl says it’s probably better to let a P.R. company to deal with media. I would assume Henein will be intimately involved with all P.R. decisions, but she shouldn’t be the one engaging with the media.

3. Can Ghomeshi get a fair trial despite all the publicity? Earl thinks he can. In the event Ghomeshi elects to use a jury, all potential jurors will be questioned before selection and if anyone shows bias, he or she will be excused from acting as a juror. Additionally, the judge will repeatedly remind the jurors of the need to remain impartial and dismiss from their minds what they have read about Ghomeshi. Mr. X is a bit more dubious about a fair trial. He thinks prospective jurors will either already have assumed his guilt based on what they’ve read, or will actually cut him a break because he’s famous.

4. Ghomeshi will face a “rockstar.” Jian hired Marie Henein. The justice system will respond in kind. Any prosecution will be handled by a superstar prosecutor—someone who can go toe to toe with Marie Henein. Additionally, Earl thinks the police and the prosecutors may be given larger budgets for investigation and expert witnesses. Thus, Henein might not provide as great an advantage for her client as she would if he wasn’t so famous.

5. “Mixed messages”. One more really interesting point. Remember above, I mentioned the mixed message of Ghomeshi proclaiming his innocence while hiring Marie Henein before any charges have been laid? Did you ponder on that? Mr. X thinks hiring Henein is part of his aggressive P.R. strategy. Marie has a reputation for shredding witnesses on cross-examination. Thus, if you feel like coming forward with a complaint about her client, know this: you will face Marie on the stand and she will do everything within the limits of the law to destroy your credibility and make you wish you never got out of bed. Imagine the horror of being sexually abused by Ghomeshi, then having to relive it under the withering cross-examination of Henein? By hiring a pitbull, Jian is screaming at the world, “Think twice about coming after me!”

In the end, who knows whether Ghomeshi will ever face a judge or not. Hiring Marie Henein may put such a chill on potential accusers that none of his alleged victims will agree to act as witnesses. That’s a huge problem with the system and a column for another day.

But, if Jian ultimately gets convicted, here’s one thing I know: I doubt he’ll be consenting to any court-imposed bondage he faces.

That’s the View From Up North. Have a great week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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