Beware of Twitter in courtrooms, Russell Williams’ defence team says

OTTAWA — The “mountain” of graphic evidence tabled by Crown prosecutors at the sentencing hearing for former Canadian Forces base commander and convicted sex killer Russell Williams has led to a new and troubling frontier for Canada’s justice system and news media, Williams’ lawyers say.

In their first — and likely only — full-length interview since Williams was sentenced for rape and murder in October, Michael Edelson and Vince Clifford said journalists inside the courtroom were being traumatized by lurid images displayed on big screens while simultaneously racing to send comments on Twitter and other instant messaging services.

“What resulted from time to time was crude, unnecessary, misplaced tweet comments,” Mr. Clifford said.

“With tweeting you have 140 characters so there is very little you can cover,” Mr. Edelson added. “You are losing the context and not giving substantive descriptions of what’s going on. And some of what was coming back (from readers) was ‘this is horrible, it’s too much information and we don’t want to hear about this’.”

During their interview with the Ottawa Citizen, the lawyers called for a high-level national debate over new media and its growing impact on Canadian court proceedings and spoke of how they deliberately put a protective “code of silence” on the Williams evidence — even within their own office.

The former colonel who commanded CFB Trenton was sentenced in October to two concurrent life sentences without a chance of parole for 25 years for the murders of Jessica Lloyd, 27, and Cpl. Marie-France Comeau, 37, two counts of sexual assault and forcible confinement and more than 80 fetish break-and-enters and attempted break-and-enters in Ottawa and the eastern Ontario communities of Tweed and Belleville from 2007 to 2009.

He stole women’s bras and panties during the break-ins, fastidiously organized and documented his trophies and even took pictures of himself wearing the undergarments.

Both lawyers saw the evidence available to police and prosecutors, including all the photographs and, in Mr. Clifford’s case, more than five hours of video that the 47-year-old Williams shot during his brutal murders of Lloyd and Comeau.

Expressing a desire to put the Williams hearing behind them, the lawyers refused to discuss the personal impact of the case or any details of their dealings with Williams.

But Mr. Clifford did recently remark to the professional magazine Canadian Lawyer: “It’s something that will carry with us until we finish practising and maybe even for all our days.”

Mr. Edelson told the magazine: “We’re never going to forget what we’ve seen.”

The veteran lawyer, who has represented clients in some of Ottawa’s more high-profile criminal cases, also revealed that he has been inundated with interview requests from American media, including the main TV networks, and European journalists.

“We have turned down countless requests because it’s not what we do,” he said. “But there are certain lessons that flow from this case for lawyers, judges and the media and we feel pretty strongly about that.”

Most important for Canada, they said, is that the judicial system comes to devise strategies to deal with new media and what they see as the inevitable encroachment of TV cameras into Canadian courtrooms.

“Law societies across the country have to come to grips with whether we need a new series of professional conduct rules to deal with this,” said Edelson, “and whether judges need some direction in when and how to deal with it.

“These are new media and they’re very popular and we have to address those issues in a very straightforward and transparent way so everyone knows what the ground rules are. It’s become a huge issue and I think it would be a fantastic thing for Canada to discuss it in a serious and comprehensive way.”

Instant messaging from a guilty plea such as the Williams sentencing carries no risk, added Mr. Edelson, because there are no witnesses to call. But he says it was a huge issue in the 2009 influencing peddling trial of former Ottawa Mayor Larry O’Brien trial, he said.

Mr. Edelson and Mr. Clifford successfully defended Mr. O’Brien. It was the first Canadian criminal court proceeding where, at the request of the Ottawa Citizen, tweeting was allowed. The Williams hearing was also opened to tweeting at the request of the Ottawa Citizen. Between the two cases, journalists broadcast tweets from a high-profile biker gang trial in London, Ont.

“Traditionally when we do trials we have an order excluding witnesses so the next witness can’t tailor their evidence to the previous witness,” he said. “We do that so they don’t hear the evidence of the previous witness.

“With this new media you have a situation where people could literally follow the trial on Twitter and discover exactly what we are excluding from the courtroom to prevent them from discovering. And I know for a fact they did.

“It was a big issue with O’Brien and it will be a big issue again.”

The answer, Mr. Clifford said, is not to necessarily ban instant messaging from courtrooms.

“But media have to recognize that there are certain inherent dangers in the process that flows from combining the portrayal of graphic evidence with the race to report. As counsel we have to think very carefully what we say in a courtroom. It is a reasonable expectation that journalists will think very carefully about what they say occurred in a courtroom.”

Mr. Edelson, a newspaper junkie, is more blunt, especially about Twitter.

“It’s rubbish,” he said. “I have no interest in looking at it. I’m a huge advocate of freedom of the press. It is a key component of a free and democratic society, but if you want serious analysis and serious discourse you have to look to serious journalists doing their job.”

During the Williams hearing, Mr. Edelson and Mr. Clifford said they saw some traumatized, exhausted journalists in tears over the images they had seen in the courtroom — images that lawyers for media outlets had asked to be made public.

All but a fraction of those available images were published or broadcast by mainstream media. Reporters and editors also decided that the graphic written descriptions of the videos shot by Williams were too disturbing and contributed little to the public’s understanding of the story.

This mass expression of media restraint confirmed for the two lawyers that the amount of evidence released by the Crown was excessive and their efforts to negotiate limits were justified. Crown attorney Lee Burgess said he wanted enough evidence on the record to persuade future parole boards never to release Williams.

The evidence that was released was the result of intense negotiations between Mr. Edelson, Mr. Clifford and the prosecutors.

“We didn’t want it to be a runaway train,” Mr. Edelson said. “We wanted it to be controlled and structured. We spent a large amount of time with Crown counsel who were largely responsive to our concerns.”

Asked why he took the case, Mr. Edelson said he “was asked to.”

“It’s probably no more complicated than that,” he said. “When you take case you often don’t know the details and that’s one of the risks. You may end up immersed in a file that’s very difficult. But that’s no reason to refuse.”