Worst dilemma in my legal career
My role as counsel for Mason Jenkins actively started on Oct. 4, 2000 when a new jury was selected. Justice Abbey had given me the summer months to prepare and I was able to spend many hours meeting with Mason in the Chatham jail.
Despite overwhelming evidence to the contrary, Mason continued to express his innocence and insisted that he had no reason to kill his sister.
Crown Attorney, Paul Bailey, was advancing the theory that Mason was also planning to kill his parents and collect insurance money as the family’s sole survivor. That possibility struck me as absurd and, to this day, I do not believe that was Mason’s intention.
Mason’s parents, Brian and Leslie Jenkins, had been excluded from the courtroom because Mr. Bailey was calling them as witnesses in their son’s trial. My heart ached for them every day.
In late November 2000, the Crown closed its case and I called Mason to the witness stand. Despite the impression many have, the decision to give evidence is made by the client, not the defence lawyer.
the lawyer gives his or her best advice to the client on this crucial step in the trial process.
Mason told the jury his story about the drug dealers coming to the family home and killing his sister while he rode out of town on a stolen horse. That was his story and he was sticking to it.
Mr. Bailey, a very experienced Crown Attorney, cross examined Mason and pressed home the improbabilities of his story. One thing that Mason said caused me to be very concerned, but legal ethics provided that as his defence lawyer I could not discuss factual matters him while he was being cross examined.
This serious event occurred on a Thursday. The next morning I had to inform the judge that I needed the case to be adjourned until the following Monday.
On the weekend, I consulted a very experienced criminal lawyer, as well as my good friend, Norm Peel. I desperately needed good advice.
Norm listened and then called two colleagues, one in Vancouver, the other in Halifax. The three agreed that I had no option, but to seek leave to withdraw from the case. None of us were aware of any case in Canadian history where a similar problem had arisen. Norm agreed to attend court with me on Monday morning to inform Judge Abbey of the serious ethical problem I faced.
Norm’s problem in addressing His Honour was that he could not disclose the factual basis for my plea to be removed as Mason’s counsel. Mr. Bailey argued that I should not be allowed to withdraw but Justice Abbey ruled that my continued presence would raise the ‘hazard’ of a deception in the court.
He ruled in my favour and Mike McArthur, an experienced criminal lawyer from Simcoe took over Mason’s defence.
I felt horrible and tried to explain my dilemma to Mason’s parents. It did not help when a nasty female reporter suggested in the Chatham Daily News that I had bailed out of the trial so that I could take a holiday in England.
Only Norm Peel, Mason Jenkins and I know the exact nature of the problem I faced and that is the way it will remain. I hope you kind readers will understand.