|
David
Milgaard inquiry | Lamer
inquiry | George Pitt |
Jerome Kennedy
Lawyer faces hearing
after criticizing judges
CBC Jan 17, 2005
ST. JOHN'S - A St. John's lawyer
may be penalized for critical comments he made about the skills
of judges.
Jerome Kennedy one of
the province's highest-profile defence lawyers told a conference
in July 2003 he was disappointed the Lamer Inquiry into the justice
system would not be examining the role of judges.
From July 28, 2003: Inquiry
should hear from judges, jury: lawyer
"It's the trial judges,
some of whom don't know what they are doing," Kennedy said
at the time.
"Part of it is as a result
of political appointments. Part of this is as a result of intentional
or unintentional biases."
He asked the inquiry to examine
the role of judges and juries, but he was denied.
Kennedy's remarks drew a complaint
from Derek Green, the chief justice of the Newfoundland Supreme
Court.
Green wrote to the Law Society
of Newfoundland, complaining that Kennedy's comments were a general
condemnation of the judges of the Supreme Court, and that they
suggested systemic bias and deliberate close-mindedness.
The Law Society of Newfoundland
is scheduled to hold a disciplinary hearing Wednesday.
While Kennedy is not speaking
publicly about the matter, his law practice partner, Bob Simmonds,
says lawyers should not be disciplined for criticizing judges.
"It's not the penalty
that we are concerned about here," Simmonds says.
"It's the fact that they'
re going to tell us they're going to say to us, 'No, no,
no, you can't comment.' You can't do that. I'm sorry, I'm not
willing to swallow that not without a fight, anyhow."
If the Law Society hearing
finds that Kennedy did commit a misconduct, he could face a reprimand,
or even be disbarred.
The Lamer Inquiry, headed by
retired Supreme Court of Canada justice Antonio Lamer, is examining
how the justice system handled the cases of Randy Druken, Ronald
Dalton and Gregory Parsons.
Each man was convicted of murder.
Druken was released from prison while his case was being appealed,
and the Crown later stayed charges.
Parsons was exonerated for
the murder of his mother, while Dalton was found not guilty of
his wife's murder during a second trial.
Criticizing the judges
Globe and Mail , Editorial ,
January 17, 2005
It is time that the judiciary
was dragged kicking and screaming into the 21st century of free
speech. It is time that the bench stopped thinking of itself
as a fragile flower and accepted that lawyers will from time
to time make harsh and intemperate criticisms. A case in
Newfoundland and Labrador offers the perfect opportunity for
the judiciary to accept that free speech means that sometimes
the gloves come off.
Chief Justice Derek Green of
the province's trial division complained to the Law Society of
Newfoundland about the harsh public comments of lawyer Jerome
Kennedy, an advocate for the wrongly convicted. Mr. Kennedy
faces a professional misconduct hearing this week.
Mr. Kennedy was upset
in 2003 that a public inquiry into three wrongful murder convictions
(all three of which he helped reveal as wrong) would not look
at the role that trial judges and jurors may have played.
He said in a speech that "trial judges who don't know what
they are doing" are one cause of wrongful convictions.
He said part of the problem is appointments made for political
reasons, rather than merit, and added that some judges have "intentional
or unintentional biases in other words, the forming of
a belief in guilt before all the evidence is in."
This is rough stuff
by the standards of the legal profession. At one time it
might have been cause for contempt-of-court hearing, under a
common-law rule against "scandalizing the court" designed
to maintain the public's faith in the administration of justice.
But since the Ontario Court of Appeal ruled in 1987 that this
common-law rule was overly restrictive of free speech under the
1982 Charter of Rights and Freedoms, the rule has become nearly
obsolete in Canada.
The Ontario ruling came
after a maverick lawyer, Harry Kopyto, told a Globe and Mail
reporter that the courts are "warped in favour of protecting
the police. The courts and the RCMP are sticking so close
together you'd think they were put together with Krazy Glue."
One of the appeal court judges, Peter Cory (later a member of
the Supreme Court of Canada), wrote that "the courts are
not fragile flowers that will wither in the hot heat of controversy."
He also said it cannot be expected that "criticism will
always be muted by restraint," and added that "hyperbole
and colourful, perhaps even disrespectful language may be the
necessary touchstone to fire the interest and imagination of
the public"
Judge Cory's defence
of free speech is worth remembering in Mr. Kennedy's disciplinary
hearing. The Newfoundland law society's code of professional
conduct says "the lawyer should encourage public respect
for and try to improve the administration of justice."
A tension exists in that sentence: To offer a sincere criticism
is to try to improve the justice system, but criticism may undermine
public respect. Of course, a system that does not permit
public criticism and does not work on its flaws will lose more
respect in the long run.
Mr. Kennedy made an
extremely serious criticism in saying that some judges lack open-mindedness.
Did he believe his criticisms were true, and did he hope to improve
the justice system by making them? Or was he simply trying
to wound or spite the bench for personal reasons? From
what has been made public thus far, there seems no reason to
doubt Mr. Kennedy's sincerity. The law society should send
a message that the justice system won't wilt if lawyers criticize
the conduct of judges.
Newfoundland lawyer accused
of misconduct
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, January 15, 2005
A prominent Newfoundland defence
lawyer, Jerome Kennedy, faces professional discipline for allegedly
slurring the entire judiciary.
A disciplinary hearing before
the Law Society of Newfoundland set for next week has been kept
under tight wraps since it was spawned by a 2003 complaint from
Chief Justice Derek Green of the trial division of the Newfoundland
Supreme Court.
The unusual proceeding highlights
a potential clash between judicial impartiality and a lawyer's
right to speak freely on issues of public importance.
In 2003, Mr. Kennedy, who has
helped bring to light several high-profile wrongful murder convictions
in the province, said trial judges "who don't know what
they are doing" rank as one of many reasons for wrongful
convictions.
"Part of this is as a
result of political appointments," Mr. Kennedy said in a
speech that was carried in media reports.
"Part of it is as a result
of intentional or unintentional biases -- in other words, the
forming of a belief in guilt before all the evidence is in."
He made his comments on the
eve of an inquiry into three notorious Newfoundland wrongful
convictions, involving Greg Parsons, Randy Druken and Ronald
Dalton, all cases that Mr. Kennedy worked on.
Mr. Kennedy took umbrage at
the inquiry's refusal to examine the role that trial judges and
jurors may have had in the cases.
In a letter of complaint to
the Law Society of Newfoundland, Chief Justice Green said that
the comments could destroy public faith in the impartiality of
judges.
"These imputations strike
directly at the heart of the judicial oath," he said. "If
true, they would be grounds for removal from office of every
judge affected by the allegations.
"My concern with Mr. Kennedy's
comments is that they appear to be a generalized condemnation
of the judges of the Supreme Court, reflecting on their general
competence as well as suggesting not only inherent and systemic
bias, but also deliberate -- i.e. intentional -- partiality and
close-mindedness."
After Chief Justice Green's
complaint, Mr. Kennedy wrote to the law society to say that he
never intended to disparage the judiciary as a whole, and had
simply been pointing out that their role deserves scrutiny.
Bob Simmonds, Mr. Kennedy's
law partner, defended his colleague's right to speak out.
"He said that some appointments
are political," Mr. Simmonds said in a telephone interview.
"No lawyer in Canada would deny that is a fact."
Experience also shows that
some judges indeed fail to grasp the law or prejudge cases, Mr.
Simmonds added.
He said the disciplinary hearing
is "an absolute farce" that could chill other lawyers
into silence.
"It is unbelievable that
the law society would proceed with this complaint," Mr.
Simmonds said. "Critical comments are made about lawyers
all the time. Does it mean that, as counsel, we have to keep
our mouths shut?
"Because if it does, I'm
in the wrong profession.
"On the one hand, Jerome
is sometimes very forthright and blunt," Mr. Simmonds added.
"On the other hand, he is dead right about this. Somebody
had to say it."
Mr. Simmonds said there is
rising public concern in Newfoundland about the province's record
of judicial miscarriages, and that any attempt to suppress a
champion of the wrongly convicted will be deeply unpopular.
"How can such an integral
part of the trial process not be examined, when we've got more
wrongful convictions across Canada than I have fingers and toes?"
Mr. Simmonds said.
The ultimate punishment for
misconduct is disbarment.
However, if a disciplinary
panel rules against him, Mr. Kennedy is more likely to face a
reprimand or suspension, and perhaps an award of legal costs
against him.
Why Keep Judges on a
Pedestal?
John
Pifer, Prime
Time Crime, April, 2005
Even in Canada's alleged democracy,
freedom of speech is still a right right? Well, sort of,
I guess, unless you are in the legal system and dare to raise
questions about the calibre and competency of those running the
show in the closed-shop system.
It is not just journalists
or victims wronged by our courts who criticize the judiciary
in Canada some lawyers actually dare to speak the truth,
too, with much more serious consequences for them than the predictable
letters of outrage and 'circle the wagons' responses that usually
follow any attack on our (in)justice system from lesser mortals.
The roles that judges play,
and the political reasons of why some are appointed to levels
far beyond their incompetence, are legitimate targets that should
be open to public examination and discussion by anyone, right?
Well, sort of, I guess. Any rant from this corner or from those
such as former police officer Leo Knight and his
www.primetimecrime.com website
about the mollycoddling of the judiciary has little impact on
the honourable men and women who wear the robes. Yet when "one
of their own" attempts to shed more light into the murky
depths, all hell breaks loose.
Case in point is that of Newfoundland
lawyer Jerome Kennedy who now faces disbarment for comments made
about the sacrosanct judiciary back in 2003. Mr. Kennedy, representing
several wrongfully-convicted men, was upset that an inquiry into
the cases would not look into the role that trial judges played
in those convictions. He even went so far as to maintain that
some judges might be biased, and (gasp!) "don't know what
they are doing"; and he questioned the politics that had
helped to land them on the bench in the first place.
Well, that was something up
with which Newfoundland's Chief Justice would not put. His Wonderfulness
Derek Green complained to the law society (also known as the
cadré of lickspittle toadies), ands now Mr. Kennedy faces
charges of professional misconduct. That was his reward for charging
that some judges are guilty of you guessed it professional misconduct!
Vancouver Sun columnist Peter
McKnight (not related to Leo, to my knowledge), wrote last month
about the plight of Mr. Kennedy, and compared the treatment of
this one minor Canadian dung-disturber to that of reformist lawmakers
in Iran who are jailed for the "offence" of criticizing
the judiciary.
Omigod! Canada is like Iran
that bastion of non-democracy surely you jest? Nope, surely
it is an accurate comparison when it comes to this issue. Mr.
McKnight cited other instances of maltreatment of lawyers who
dared to raise any questions about their "learned friends"
on the bench.
He acknowledged that any comments
or opinions expressed by lawyers about the administration of
justice must be carefully and legitimately of substance, and
there is no argument here about that. But for the system and
the judges to bully and threaten any LLB who dares to question
their actions is not the kind of democracy that most of us believe
we have a right to expect in Canada.
Back off, your Honours, back
off.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell