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WHY COFFIN’S COUNSELS KEPT SILENT?
Here is the first of three parts of this excerpt from the Brossard report:
EXCERPT FROM THE BROSSARD COMMISSION REPORT
PART IV
PROOF ABANDONED, IGNORED OR… ABSENT
Chapter 2 : Why Coffin’s counsels kept silent
(A literal translation by Clément Fortin)
Let us remember that the honourable justice Edouard Rinfret of the Court of Appeal mentioned that one of the facts that the Percé jury might have retained or was entitled to was that of Coffin’s silence and the absence, consequently, of explanations from his part on the incriminating facts proven by the Crown.
As we have seen already, Coffin, realizing, by himself or by his counsels, the terrible importance of the establishment of this fact and of the learned justice’s opinion, had recourse, as a foundation for his doubtful right to make, under oath, the allegations in his affidavit of the 9th of October 1955, by invoking that « even although it was his desire to testify in his own defence, he had been advised not to do so by one of his counsels ».
Impressed, without doubt, by the honourable justice Rinfret’s opinion which comprised the declaration of a principle of law, but did not direct any blame to Wilbert Coffins’ attorneys and did not comment their decision, Mr. John Edward Belliveau (he was not a lawyer, but had covered Coffin’s trial) also drawing his inspiration, and without doubt, from the extra-judicial allegations in Coffin’s affidavit of the 9th of October 1955 and of certain documents filed with the Department of Justice, expressed his surprise to the fact that Coffin’s counsels had not called him to be heard at trial, and did so, in terms susceptible to raise doubts as to the wisdom of this decision.
From his part, M. Hébert (he was not a lawyer and had neither attended the trial nor read the proof submitted to the jury) wrote, in « Coffin was Innocent and in « I Accuse the Assassins of Coffin », the most brutal lines, the most injurious and the hardest on Mtre Maher ; he accused him of incompetence, of having « committed so many serious errors that one may believe that he was not in the full possession of his faculties », of not having had « the conduct of a man on whom depended the life of a man », of having caused an irreparable wrong to Coffin « in keeping him from testifying and from explaining what had happened in his own terms to his Gaspesian compatriots who composed the jury », in accusing him “of having bluffed all through the trial”, on the one hand, and on the other, in insinuating that Coffin had been forced to keep silent by Mtre Maher…” while Coffin was imploring his counsel to let him talk”.
Then, let us see what Mtres Maher et Doiron, two of Coffin’s counsels, had to say about this matter when they testified before this Commission and let us study Mtre Gravel’s testimony on this same subject.
I could not better explain Mtre Maher’s conduct than by quoting, in extenso, the explanations he himself gave before this Commission.
After having said why a certain number of witnesses from New Brunswick whom he had summoned were not heard, as we shall see hereafter when we shall deal with the Arnold’s jeep, after having recalled that « when one presents a defence, the Crown may always, in criminal matters, present a counter-proof », after having underlined that he had had to take into consideration a) the statutory declaration that Wilbert Coffin made to Mr. Vanhoutte on the 6th of August 1953, b) that this declaration filed at the preliminary enquiry was not presented to the Percé jury, and that c) since it was a declaration which was not in itself incriminating, it might be used to contradict Coffin if he testified, after having also recalled « that all the proof of the Crown at trial has been in greater part a denial of various facts alleged by Coffin in his statutory declaration”, Mtre Maher gave the following explanations in support of his decision for not having called witnesses:
Transcripts pages 9300 à 9310 :
« And then obviously with my client, I do not want to report what was said between me and my client, but my client knew from A to Z what I was going to do, the Coffin family, mister Albert Coffin and then Donald, and that I did not want that it be known too fast, the fact that I would not call witnesses to the stand, when the decision was taken towards the end of the trial, because we had considered and discussed all possible means of defence and held in suspense until the end, and then, I learned that Mtre Miquelon wished to rest the prosecution on Saturday, the twenty-ninth (29) or the thirtieth (30), I’ll see, I think that it is the thirtieth (30) of July, Saturday, and then I asked to hold that in suspense. Then, he has not rested his case on Saturday, but we knew, how shall I say.. you see, Saturday was the thirty first (31) of July, and then on the thirtieth of July, I knew that the Crown had finished, and it is then and there that I had a conference with Mtre Gravel and then with Mtre Doiron, and it is on that Saturday that it was decided that we would not offer a defence.
Now, we had a discussion, and a part of the discussion was on that, we wanted to know what formula to adopt for announcing that we would not offer a defence, because, in a case as important as this one, that of a murder, to stand up and say : « we have no witnesses to offer, no defence, it looks more awkward than to say : « the defence rests », well it was an expression recognized and proven through the experience of eminent English counsels, but I wanted to say simply « the defence rests », it did not mean that we had no defence to offer, it meant that we figured that the Crown had not proven the case beyond reasonable doubt, and that we were not obliged to submit a defence.
And then one of the main arguments was what Mtre Gravel kept telling me, and upon relying on Morabito vs. The King or the Queen, The Morabito case, that the degree of proof required, that the degree or the weight required had not been reached by the Crown.
Besides, I believe that the decision is good, I would take the same decision in the same circumstances, and if the decision based on the fact that the Crown had proven its case beyond all reasonable doubt, how is it that we have a Royal Commission, and then how is it that during eleven years every body had talked it over, if there were no doubt? I repeat that our decision was good, it was taken by three, by four, by all those interested, first, the client, then the counsels, we were in perfect agreement, taking into account all the circumstances of the case, in taking into consideration what the Crown might have done if we had called Wilbert Coffin to the stand, and then in taking into account the quality of the proof that the Crown had submitted, or the weight of the proof that had been offered by the Crown during the trial.
And then, more over, the disculpatory facts that Wilbert Coffin might have told under oath in the witness stand had already been stated by witnesses, I may give you the names, disculpatory or exculpatory facts that Wilbert Coffin might have told, had already been said in cross-examination by Crown witnesses, and when I speak of Crown witness, there was her own sister, there was Bill Baker, there was… One moment, please, then the only thing that we might have done in calling Wilbert Coffin to the stand, we would have exposed him to Mtres Noël Dorion and Paul Miquelon and Blanchard’s cross-examination, and the whole Provincial Police and the whole head quarter of the Provincial Police was there with a most complete investigation, one was watching everything, who might have controlled no matter what at a moment’s notice, let’s face it, if we had called him to the stand, sir, there would not be a Royal Enquiry, in my opinion.
Q. Then, you just touched, mister Maher, a point to which I was coming, that is to say if there were differences of opinions or not ?
A. None.
Q. Between defence counsels when the decision was taken to not call Coffin to testify ?
A. Look here, we discussed, mister Gravel and I have not the same temperament and then Mtre Doiron, Mtre Gravel and I discussed, we kept all the means of defence open until the end, and then to show one thing, that the decision was joint and several.
Q. Did you, yourself, talked about this problem ?
A. If you mean to say that I should bear alone the responsibility, I shall assume it alone, you ask me the question, and this is what happened. Mtre Doiron and Mtre Grave and I were three friends and more over three lawyers, we had attended the university together, Mtre Gravel and I had been raised almost on the same street, he was one of my friends, we discussed freely, and there was no hide and seek, and then we kept in suspense all means of defence, and then we defended Coffin, everyone to the best of his capacity, that is the truth. Mtre Gravel was carrying out the research, he was doing it well, he worked hard, Mtre Doiron was doing what’s possible and I also believe having done so myself.
Q. Do you know Mister Maher, if this question, if this decision to call or not to call Coffin to the witness stand was reached in the course of the trial over the phone with Mtre Arthur Maloney of Toronto ?
A. I know that Mtre Gravel often called Arthur Maloney in Toronto, and I spoke to him once and Mtre Maloney talked to me about the theory of recent possession of stolen objects, and I said yes. He said: “did you read it well?”. I said : « yes, I read it well ». That’s all there was between Mtre Maloney and I.
Q. Has he spoken to you about the opportunity of hearing Coffin or not ?
A. He, his opinion, was that we had to be careful because, you know his theory, if the accused is found in recent possession of objects recently stolen, he has to give a plausible explanation, that is to say, yes, he has then to reverse the burden of proof.
….
A. My opinion was that the Crown had proven recent possession of objects having belonged to the Americans, but there was no proof of theft whatsoever ; first, no one came to say that he had been stolen and no one said (I have stolen). Therefore, I pretended that this theory did not apply, that was my opinion, that was my colleagues’opinion. Obviously, when we consider this retrospectively, it is not the same thing it was before the verdict, you know that after a verdict is rendered, it is easy to make comments, but to take decisions before the verdict, it is difficult in a case where capital punishment is involved. I believe that every one did his best to give Wilbert Coffin the best defence possible.
Q. You just said in what way this decision was taken on defence counsels’ common agreement, could you tell us if your client had personally been informed of that decision before it was announced in Court ?
A. Of course, he was fully informed, first, he followed closely the debates, I have kept him informed the year long, I saw him very often during the year, he has helped me in the investigation, I may not go into that, but he was alert, he was intelligent, he was very well informed, and I discussed with him at the adjournments, I saw him early in the morning, almost every morning, because I am an early riser, and then I saw him twice or three times a day, we discussed, I discussed with my colleagues, I do not say that I always shared my colleagues’ opinion and that my colleagues shared mine, but we discussed together in order to find the best defence possible..
Q. Did it occur in the course of the trial that Coffin had expressed his intention of testifying one way or another ?
A. My dear brethren, Coffin relied on me completely on this matter, what I did with Coffin, what I discussed with him, I may not report it to you, but I may tell you that he relied completely on me, and that I did not take this decision alone, I talked it over with him and with my two brethrens and I talked it over with his family.
Q. Can you tell us…
A, He has never asked desperately, no, no, no, he has never asked me to testify, but we talked over the possibility that he be heard, it was talked over thoroughly, studied thoroughly, and then it was turned over, I do not know how many times..
Q. Having been informed of your advice, that it was preferable for him to not testify, has he expressed his agreement ?
A. Coffin was in complete agreement.
Q. Then, I refer you to what can be read at page 56 of monsieur Hébert’s book, the third paragraph, where the author expresses himself as follows : « often Coffin would have wanted to intervene, to discomfit a witness who was leading the jury on a false path, shed some light which would have prohibited the Crown from elaborating learned theories on the matter of an error on a date or a misunderstanding, but his lawyer Mtre Maher prevented him from testifying without any justification.
A. My dear friend …
Q. Did that occur during the trial ?
R. How can an attorney prevent his client from speaking in Court ? Can you tell me ? If he wanted so desperately to talk, he only had to talk, I never prevented Coffin from speaking, but I have advised him on the opportunity of testifying or not, that is done frequently. It is one of the most difficult decisions to take in any profession to wit, to have our client to testify or not in a case of murder, in a tense atmosphere, which is electrical, where the least error from his part would tie a knot on his neck, come along !
TO BE CONTINUED WITH THE TESTIMONIES OF MTRES GRAVEL AND DOIRON
Here is the first of three parts of this excerpt from the Brossard report:
EXCERPT FROM THE BROSSARD COMMISSION REPORT
PART IV
PROOF ABANDONED, IGNORED OR… ABSENT
Chapter 2 : Why Coffin’s counsels kept silent
(A literal translation by Clément Fortin)
Let us remember that the honourable justice Edouard Rinfret of the Court of Appeal mentioned that one of the facts that the Percé jury might have retained or was entitled to was that of Coffin’s silence and the absence, consequently, of explanations from his part on the incriminating facts proven by the Crown.
As we have seen already, Coffin, realizing, by himself or by his counsels, the terrible importance of the establishment of this fact and of the learned justice’s opinion, had recourse, as a foundation for his doubtful right to make, under oath, the allegations in his affidavit of the 9th of October 1955, by invoking that « even although it was his desire to testify in his own defence, he had been advised not to do so by one of his counsels ».
Impressed, without doubt, by the honourable justice Rinfret’s opinion which comprised the declaration of a principle of law, but did not direct any blame to Wilbert Coffins’ attorneys and did not comment their decision, Mr. John Edward Belliveau (he was not a lawyer, but had covered Coffin’s trial) also drawing his inspiration, and without doubt, from the extra-judicial allegations in Coffin’s affidavit of the 9th of October 1955 and of certain documents filed with the Department of Justice, expressed his surprise to the fact that Coffin’s counsels had not called him to be heard at trial, and did so, in terms susceptible to raise doubts as to the wisdom of this decision.
From his part, M. Hébert (he was not a lawyer and had neither attended the trial nor read the proof submitted to the jury) wrote, in « Coffin was Innocent and in « I Accuse the Assassins of Coffin », the most brutal lines, the most injurious and the hardest on Mtre Maher ; he accused him of incompetence, of having « committed so many serious errors that one may believe that he was not in the full possession of his faculties », of not having had « the conduct of a man on whom depended the life of a man », of having caused an irreparable wrong to Coffin « in keeping him from testifying and from explaining what had happened in his own terms to his Gaspesian compatriots who composed the jury », in accusing him “of having bluffed all through the trial”, on the one hand, and on the other, in insinuating that Coffin had been forced to keep silent by Mtre Maher…” while Coffin was imploring his counsel to let him talk”.
Then, let us see what Mtres Maher et Doiron, two of Coffin’s counsels, had to say about this matter when they testified before this Commission and let us study Mtre Gravel’s testimony on this same subject.
I could not better explain Mtre Maher’s conduct than by quoting, in extenso, the explanations he himself gave before this Commission.
After having said why a certain number of witnesses from New Brunswick whom he had summoned were not heard, as we shall see hereafter when we shall deal with the Arnold’s jeep, after having recalled that « when one presents a defence, the Crown may always, in criminal matters, present a counter-proof », after having underlined that he had had to take into consideration a) the statutory declaration that Wilbert Coffin made to Mr. Vanhoutte on the 6th of August 1953, b) that this declaration filed at the preliminary enquiry was not presented to the Percé jury, and that c) since it was a declaration which was not in itself incriminating, it might be used to contradict Coffin if he testified, after having also recalled « that all the proof of the Crown at trial has been in greater part a denial of various facts alleged by Coffin in his statutory declaration”, Mtre Maher gave the following explanations in support of his decision for not having called witnesses:
Transcripts pages 9300 à 9310 :
« And then obviously with my client, I do not want to report what was said between me and my client, but my client knew from A to Z what I was going to do, the Coffin family, mister Albert Coffin and then Donald, and that I did not want that it be known too fast, the fact that I would not call witnesses to the stand, when the decision was taken towards the end of the trial, because we had considered and discussed all possible means of defence and held in suspense until the end, and then, I learned that Mtre Miquelon wished to rest the prosecution on Saturday, the twenty-ninth (29) or the thirtieth (30), I’ll see, I think that it is the thirtieth (30) of July, Saturday, and then I asked to hold that in suspense. Then, he has not rested his case on Saturday, but we knew, how shall I say.. you see, Saturday was the thirty first (31) of July, and then on the thirtieth of July, I knew that the Crown had finished, and it is then and there that I had a conference with Mtre Gravel and then with Mtre Doiron, and it is on that Saturday that it was decided that we would not offer a defence.
Now, we had a discussion, and a part of the discussion was on that, we wanted to know what formula to adopt for announcing that we would not offer a defence, because, in a case as important as this one, that of a murder, to stand up and say : « we have no witnesses to offer, no defence, it looks more awkward than to say : « the defence rests », well it was an expression recognized and proven through the experience of eminent English counsels, but I wanted to say simply « the defence rests », it did not mean that we had no defence to offer, it meant that we figured that the Crown had not proven the case beyond reasonable doubt, and that we were not obliged to submit a defence.
And then one of the main arguments was what Mtre Gravel kept telling me, and upon relying on Morabito vs. The King or the Queen, The Morabito case, that the degree of proof required, that the degree or the weight required had not been reached by the Crown.
Besides, I believe that the decision is good, I would take the same decision in the same circumstances, and if the decision based on the fact that the Crown had proven its case beyond all reasonable doubt, how is it that we have a Royal Commission, and then how is it that during eleven years every body had talked it over, if there were no doubt? I repeat that our decision was good, it was taken by three, by four, by all those interested, first, the client, then the counsels, we were in perfect agreement, taking into account all the circumstances of the case, in taking into consideration what the Crown might have done if we had called Wilbert Coffin to the stand, and then in taking into account the quality of the proof that the Crown had submitted, or the weight of the proof that had been offered by the Crown during the trial.
And then, more over, the disculpatory facts that Wilbert Coffin might have told under oath in the witness stand had already been stated by witnesses, I may give you the names, disculpatory or exculpatory facts that Wilbert Coffin might have told, had already been said in cross-examination by Crown witnesses, and when I speak of Crown witness, there was her own sister, there was Bill Baker, there was… One moment, please, then the only thing that we might have done in calling Wilbert Coffin to the stand, we would have exposed him to Mtres Noël Dorion and Paul Miquelon and Blanchard’s cross-examination, and the whole Provincial Police and the whole head quarter of the Provincial Police was there with a most complete investigation, one was watching everything, who might have controlled no matter what at a moment’s notice, let’s face it, if we had called him to the stand, sir, there would not be a Royal Enquiry, in my opinion.
Q. Then, you just touched, mister Maher, a point to which I was coming, that is to say if there were differences of opinions or not ?
A. None.
Q. Between defence counsels when the decision was taken to not call Coffin to testify ?
A. Look here, we discussed, mister Gravel and I have not the same temperament and then Mtre Doiron, Mtre Gravel and I discussed, we kept all the means of defence open until the end, and then to show one thing, that the decision was joint and several.
Q. Did you, yourself, talked about this problem ?
A. If you mean to say that I should bear alone the responsibility, I shall assume it alone, you ask me the question, and this is what happened. Mtre Doiron and Mtre Grave and I were three friends and more over three lawyers, we had attended the university together, Mtre Gravel and I had been raised almost on the same street, he was one of my friends, we discussed freely, and there was no hide and seek, and then we kept in suspense all means of defence, and then we defended Coffin, everyone to the best of his capacity, that is the truth. Mtre Gravel was carrying out the research, he was doing it well, he worked hard, Mtre Doiron was doing what’s possible and I also believe having done so myself.
Q. Do you know Mister Maher, if this question, if this decision to call or not to call Coffin to the witness stand was reached in the course of the trial over the phone with Mtre Arthur Maloney of Toronto ?
A. I know that Mtre Gravel often called Arthur Maloney in Toronto, and I spoke to him once and Mtre Maloney talked to me about the theory of recent possession of stolen objects, and I said yes. He said: “did you read it well?”. I said : « yes, I read it well ». That’s all there was between Mtre Maloney and I.
Q. Has he spoken to you about the opportunity of hearing Coffin or not ?
A. He, his opinion, was that we had to be careful because, you know his theory, if the accused is found in recent possession of objects recently stolen, he has to give a plausible explanation, that is to say, yes, he has then to reverse the burden of proof.
….
A. My opinion was that the Crown had proven recent possession of objects having belonged to the Americans, but there was no proof of theft whatsoever ; first, no one came to say that he had been stolen and no one said (I have stolen). Therefore, I pretended that this theory did not apply, that was my opinion, that was my colleagues’opinion. Obviously, when we consider this retrospectively, it is not the same thing it was before the verdict, you know that after a verdict is rendered, it is easy to make comments, but to take decisions before the verdict, it is difficult in a case where capital punishment is involved. I believe that every one did his best to give Wilbert Coffin the best defence possible.
Q. You just said in what way this decision was taken on defence counsels’ common agreement, could you tell us if your client had personally been informed of that decision before it was announced in Court ?
A. Of course, he was fully informed, first, he followed closely the debates, I have kept him informed the year long, I saw him very often during the year, he has helped me in the investigation, I may not go into that, but he was alert, he was intelligent, he was very well informed, and I discussed with him at the adjournments, I saw him early in the morning, almost every morning, because I am an early riser, and then I saw him twice or three times a day, we discussed, I discussed with my colleagues, I do not say that I always shared my colleagues’ opinion and that my colleagues shared mine, but we discussed together in order to find the best defence possible..
Q. Did it occur in the course of the trial that Coffin had expressed his intention of testifying one way or another ?
A. My dear brethren, Coffin relied on me completely on this matter, what I did with Coffin, what I discussed with him, I may not report it to you, but I may tell you that he relied completely on me, and that I did not take this decision alone, I talked it over with him and with my two brethrens and I talked it over with his family.
Q. Can you tell us…
A, He has never asked desperately, no, no, no, he has never asked me to testify, but we talked over the possibility that he be heard, it was talked over thoroughly, studied thoroughly, and then it was turned over, I do not know how many times..
Q. Having been informed of your advice, that it was preferable for him to not testify, has he expressed his agreement ?
A. Coffin was in complete agreement.
Q. Then, I refer you to what can be read at page 56 of monsieur Hébert’s book, the third paragraph, where the author expresses himself as follows : « often Coffin would have wanted to intervene, to discomfit a witness who was leading the jury on a false path, shed some light which would have prohibited the Crown from elaborating learned theories on the matter of an error on a date or a misunderstanding, but his lawyer Mtre Maher prevented him from testifying without any justification.
A. My dear friend …
Q. Did that occur during the trial ?
R. How can an attorney prevent his client from speaking in Court ? Can you tell me ? If he wanted so desperately to talk, he only had to talk, I never prevented Coffin from speaking, but I have advised him on the opportunity of testifying or not, that is done frequently. It is one of the most difficult decisions to take in any profession to wit, to have our client to testify or not in a case of murder, in a tense atmosphere, which is electrical, where the least error from his part would tie a knot on his neck, come along !
TO BE CONTINUED WITH THE TESTIMONIES OF MTRES GRAVEL AND DOIRON
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