Warts And All
The Ontario Law Society Tribunal Hearing Panel found misconduct in a defense attorney’s conduct of a criminal trial
In February 2020, Mr. Corcoran acted as defence counsel in a sexual assault jury trial in which G.B. was the accused. There were three complainants: G.B’s daughter, his niece, and a family friend, all of whom were minors at the time of the alleged assaults. The trial proceeded for seven days, including the start of G.B.’s evidence-in-chief. On the eighth day, Crown Counsel took the highly unusual step of bringing an application for a mistrial on the basis that Mr. Corcoran had rendered ineffective counsel to the accused. The trial judge granted the application, and declared a mistrial on February 27, 2020.
The prosecution then sought his removal
The Crown’s application was granted, and the trial judge removed Mr. Corcoran as counsel of record for the accused. The trial judge concluded that the accused’s right to a fair trial was imperilled by his choice of incompetent counsel. She cited other reasons for removing Mr. Corcoran as counsel for the accused in addition to those that grounded her decision on the mistrial, all of which led her to conclude that there was no reason to believe that Mr. Corcoran’s conduct at a second trial would be any different from that at the first trial.
The criminal trial
The trial judge outlined 14 separate incidents that cumulatively lead to her conclusion that Mr. Corcoran gave ineffective assistance as counsel. Troublingly, she stated that she “suspect[ed] that he has made a deliberate, tactical decision to ignore the rules of evidence; the case law; the Criminal Code
Trial court efforts to rein him in
Despite these reminders, it is apparent from the transcript of the trial that Mr. Corcoran’s defence strategy for G.B. included raising both these myths and stereotypes, including making assumptions about possible (wholly irrelevant) sexual activity of one of the complainants, and suggesting that the behaviour of G.B.’s daughter towards him after the alleged assault was evidence supportive of the defence. The trial judge found a pattern of Mr. Corcoran asking questions and then seeking forgiveness after the damage had been done. She expressed grave concern that this conduct was intentional, and not just based on an ignorance of the law. We conclude that the conduct was intentional. Mr. Corcoran’s conduct was based on his fundamental lack of understanding of the evidentiary rules for sexual assault trials as developed in the case law and his failure to identify and abandon his own belief in long-rejected myths and stereotypes. However, he was not deliberately flouting the law or the court’s directions. His failure was in not knowing what the relevant law and evidentiary rules were for a sexual assault criminal trial. This is a profound and inexcusable failure on the part of a criminal defence lawyer.
In addition to competence issues
In its closing submissions, the Law Society alleged that Mr. Corcoran did not control his emotions and lacked civility during the trial, upsetting court decorum and creating “chaos and disruption.” It cited five incidences which it alleged demonstrated Mr. Corcoran failing to treat the justice participants with courtesy and respect and failing to be courteous, civil and act in good faith towards the court and witnesses:
• calling a complainant a “wart” in front of the jury;
• yelling at a witness, or at the very least raising his voice at a child complainant;
• stating that he did not care what a witness says;
• being unable to hear a witness for some time, but failing to bring it to the attention of the court, although at the beginning of the trial he had undertaken to the court that he would do so if the equipment failed; and
• in front of the jury, calling a witness a liar and expressing his personal opinions on different matters during the trial.
Warts and all
At the commencement of his opening to the jury, Mr. Corcoran stated:
I’m just going to tell you what’s going to happen for the defence in the next little while and then I’m going to tell you some of the warts on this case, as far as I’m concerned, so you get a chance to understand where I’m coming from so when I get talking to witnesses you know what I’m trying to do.
…
As far as this – another wart is this business of her being in St. Lucia; … That’s another wart.
Raised voice not misconduct
Early on in the trial, the judge admonished Mr. Corcoran not to raise his voice while cross-examining a young complainant. She said, “Mr. Corcoran, Mr. Corcoran, your voice is becoming very loud.” Mr. Corcoran apologized immediately, and confirmed that he would keep his voice down. The following day, the trial judge reminded Mr. Corcoran not to yell at witnesses. He admitted that “I was being very high in my volume yesterday and I tried to stop it but I got excited.” Mr. Corcoran expressed his contrition about this conduct, and confirmed it was not intentional. The conduct was not repeated. However, the trial judge included this one moment of a raised voice in her list of conduct that demonstrated a lack of knowledge or an unwillingness to follow general trial procedures and common courtesy.
We find that Mr. Corcoran’s raised voice during a single cross-examination did not demonstrate a failure to follow general trial procedures or a lack of common courtesy rising to the level of professional misconduct. While raising one’s voice at a child witness is absolutely to be discouraged and was unseemly, this one instance in the course of a seven-day trial where Mr. Corcoran’s voice became “very loud” does not meet the threshold of professional misconduct.
Incivility
In reaching our decision on the allegations of incivility, we have considered the context in which these allegations arose, particularly that Mr. Corcoran was defending G.B. at a sexual abuse jury trial involving three separate complainants, all of whom were minors at the time of the alleged abuse. The stakes were high for G.B. and the matter was not simple. Mr. Corcoran was highly invested in defending his client. We have also taken into consideration that when the trial judge identified areas of concern with respect to Mr. Corcoran’s behaviour, such as raising his voice at a witness, or the need to review the law with respect to certain trial practices, Mr. Corcoran complied in good faith. However, as addressed below, Mr. Corcoran did not stop making speeches and expressing his own opinion, despite repeated warnings from the Court. We find that he did not act in good faith in his questioning and conduct that breached s. 276 of the Criminal Code. This lacked candour, courtesy, civility, and respect for the court and the justice participants. It crossed the line to potentially compromising a fair trial and bringing the administration of justice into disrepute.
Findings
Mr. Corcoran was repeatedly admonished for expressing his personal opinions. The trial judge explained to him on three separate occasions that the jury was not to hear his opinions, and yet he continued to state opinions. He should have known better, and when corrected by the trial judge he should have stopped. The trial judge noted in her mistrial ruling that Mr. Corcoran did not work from notes. The point she was presumably intending to make was that with the benefit of notes, Mr. Corcoran could have kept himself from getting into this kind of trouble. He could have formed proper questions for the cross-examinations that were not convoluted, rambling, and interspersed with his own commentary.