The Second Trial (6 page)

“Sir, this Court must send a message. It must say, firmly and without hesitation, that all people who commit these crimes will be held strictly accountable. As a society, we cannot afford to be tolerant of domestic violence.

“This message must reach not just those who batter their spouses. It must reach those who abuse their children. It must reach those who abuse vulnerable elders. In short – it must send a signal to all, that our society will protect those who cannot protect themselves.

“Your Honor, I submit that the evidence supports – and justice
demands
– that Mr. McMillan be designated a dangerous offender and sent to jail for at least seven years. Anything short of a long prison term for Mr. McMillan will be a death sentence for his wife.”

Chapter 8

Monday

Judge Cunningham removed his glasses. “Mr. Miller, may I hear from the defense?”

“Of course.” Mr. Miller addressed the judge in a calm and reasonable tone. “Sir, no one doubts the heartache Mrs. McMillan's husband has caused her.” He paused. “
However
, it is still the Court's duty to treat him fairly and according to law. And fairness means this Court must follow the rules.” He picked up the
Criminal Code
. “And
this
is the rule book. These rules apply to
every
criminal proceeding – including this one. These rules of evidence, developed over the centuries, are the cornerstone of our justice system. Without them, our system of justice would disintegrate.” He laid the
Criminal Code
on the table on top of the
Summary
of Convictions.
“This is the heart of the matter,” he said, cupping his hands as if holding a precious stone. “Even if it seems unfair, the rules say you must ignore everything in the victim impact statement
other
than about the three convictions. Nothing else is admissible.” He softened his tone, as if expressing condolence for another's loss. “We're not challenging Mrs. McMillan's sincerity. However, saying those things doesn't prove they happened. Mr. McMillan is being sentenced for
this
crime, not for all his alleged crimes. His criminal record is relevant because the two other assaults were proven in a court of law – but nothing else.

“There are two important legal principles at stake. First, an accused person is entitled to a full trial on every alleged breach of the law. He must be permitted to hear the evidence and test it by cross-examination. Second, the judge must always hear both sides of a story. It can never be fair to make a decision when you've heard only one side. Today, you heard Mrs. McMillan's narrative of this sixteen-year marriage, but not Mr. McMillan's.”

He paced a few steps back and forth. “Now what does that mean regarding the psychiatrist's conclusions? He said Mr. McMillan showed a strong pattern of violent behavior. To reach that conclusion, he relied on
all
the things Mrs. McMillan told him. But, when you strip away all the conclusions he based on the
unproven
assaults, his risk profile falls
far short
of showing a pattern of behavior severe enough to label Paul McMillan a dangerous offender.

“Mr. McMillan may be a bully, but that doesn't
prove
he'll assault his wife again. Now, I'm mindful that Dr. Hamilton has a very damning opinion about Mr. McMillan – his gut reaction, he called it. But courts don't run on gut reactions. They run on evidence.

“Also, it's
far too early
to say this man can never change. It's far too early to say society must lock him up and throw away the key. He's
not
an alcoholic or drug addict. Perhaps therapy can give him the tools he needs to control himself. We don't know, because it hasn't been tried.

“Your Honor, Mr. McMillan accepts that his marriage is over. He knows he has forever lost his wife's trust. However, they are the parents of two children, and nothing will ever change that. He wants to remain an active father and participate in raising his children, just as any father would. There isn't any admissible evidence that he's a threat to his children – not in the past, not at present, not in the future.

“Your Honor, the defense believes there should be a firearms prohibition, plus a jail term of two years. The rest belongs in the civil divorce court. Mr. McMillan doesn't oppose a long-term restraining order. The divorce court will also work out the delicate balance between Mrs. McMillan's right to be divorced and end all contact with her husband, and her
children's
right to know and have access to their father.

“In summary, you cannot today sentence Mr. McMillan for what he
might
have done in the past. You cannot sentence him for what someone fears he
might
do in the future. You can only sentence him for the case before you. If this Court gives him seven years, it will be punishing him as severely as murderers are punished. He has abused his wife, yes. But he is
not
a murderer.

“That is all, Your Honor.”

Chapter 9

Monday

Judge Cunningham leaned back and tapped the side of his pen lightly against his lips. “Thank you, Mr. Miller. Any rebuttal by the Crown?”

“Yes, sir, several points. First, each assault took place in the victim's home. The assaults were a betrayal of everything a home should be – a place of peace, safety, security…a place of love. Mr. McMillan single-handedly changed this refuge into a place of private torment. Behind closed doors that were meant to keep the world
out
and give her a place to get away, he abused his wife. If a person can't be safe in her own home, where can she be safe? So the very private nature of these assaults is an
aggravating
factor in sentencing.

“Second,
none
of these assaults happened when Mr. McMillan was drunk or on drugs. Mr. Miller says this is a mitigating factor and suggests that Mr. McMillan is teachable. However, the prosecution believes it is an
aggravating
factor. His actions, if not planned, were certainly
deliberate
. Given the chance, he will soberly and deliberately assault his wife again.

“Now, the defense suggests Mrs. McMillan will be safe with a restraining order. But a restraining order isn't justice, Your Honor, it's a piece of paper.” She picked up a page of the victim impact statement and held it by the top edge, dangling it in front of her. Then she turned toward Paul and positioned it between their faces. “And it won't stop a bullet.

“Third, yes, Mrs. McMillan has filed for divorce. Whether Mr. McMillan agrees or not, it's going to happen. Mr. Miller suggests the divorce and a firearms prohibition will put an end to her problems. We believe it will increase them. Statistics bear this out. The time in which a woman is most likely to die at the hands of an abusive spouse is in the months just after a separation or divorce. For Mrs. McMillan, that time is now. She needs more than just a piece of paper.

“Fourth, Mr. Miller says there's no evidence that Paul McMillan ever abused or threatened to harm his children. What about threatening to kill their mother? Can there be any clearer example of child abuse? How can we possibly consider him a caring and loving father?

“And finally, one last point that is very significant for Mrs. McMillan. She brought it up earlier. She feels that her husband's decision to plead not guilty and force her to testify, when there wasn't a shred of doubt that he assaulted and threatened her, is just another way to torment her, to abuse her again.

“The aim of putting Mr. McMillan in jail for a long time is not to punish him. It's to prevent future violence against his wife. It is done when there is no other way to protect a victim. And that is exactly the case here.”

Sandra sat and the judge turned to the defense lawyer. “Final words, Mr. Miller?”

“Yes, sir. Very briefly. It is a basic principle of our criminal law that the prosecution must prove its case beyond a reasonable doubt. The accused needn't
prove
the prosecution is wrong. The accused need only raise a reasonable doubt. We've done just that, raised a reasonable doubt that the
only
way to protect Catherine McMillan is to lock up Paul McMillan for years and years.

“And finally, as frustrating as it may seem to Mrs. McMillan, every person has a
right
to a fair trial. It's not a question of inconveniencing or harassing a witness, or demanding some sort of unfair advantage. It's a right protected by our constitution and every moral principle we hold dear.

“And so, Your Honor, the prosecution's application must be dismissed.”

“Thank you, Mr. Miller.” The judge straightened his papers. “Before I adjourn to consider my verdict, is there anything more I need to hear?”

“Yes, Your Honor,” said Mr. Miller. “If it pleases the Court, Mr. McMillan would like to say a few words.”

“He may speak. However, as he's not under oath, and he's not subject to cross-examination,” the judge looked at Paul over the top of his glasses, “he must be brief.”

Paul stood. He looked straight at the judge. With a polite, calm and respectful voice, he said, “Sir, I wish to apologize to this court, to my wife, and to my family. I know what I did on December 8th was senseless and cruel.” He faced Catherine, but she continued to stare straight ahead. Danny looked at his dad, then his mother, and back at his father again.
Should I be listening
to my mother's truths, or seeking out my father's truths
? He was trapped between them. His father's words sounded far away, as if they were filtered through cotton.

“I've been in jail for eight months. I've had lots of time to think about my failings as a husband. I've also come to realize the effect my behavior has had on my family.” Emotion crept into his voice, a slight quaver.

Sincerity,
thought Danny.
Yes, he's telling the truth.

“Catherine, I cannot say how it shames me to hear you say you are so afraid of me that you think I will kill you or hurt our children. I would
never
do such a thing.” A long pause, a slight slump in the shoulders, guilt, resignation. “Although I don't want our marriage to be over, I accept that for you it is. I know it's too late to change your mind.” He cleared his throat and looked down. Then he raised his head but kept his eyes downcast. “I'm sorry. I promise I'll never hurt you again.”

The words settled like an embrace around Danny.

Everything is going to be okay.

The judge thanked everyone and called a twenty-minute recess, after which he would deliver his verdict.

Chapter 10

Monday

They waited in the lawyers' lounge. Sandra noticed Catherine's down-turned mouth and creased forehead. Danny sat rigid and silent beside her. Sandra leaned over and put her hand on Catherine's knee. “Don't worry, Catherine. Your part is done. You did a good job. It's up to the judge now.”

They reentered the courtroom at five minutes to three. Danny and Catherine slid wordlessly onto the same bench. The familiar feel of cool, smooth wood was all that felt real in this sunless room where a stranger could take control of innocent people's lives.

At precisely 3 p.m., the court clerk confirmed that everyone was ready, and then instructed the guard, “Please bring in the prisoner.”

In his mind, Danny set aside the word
prisoner
and watched his father enter. Then came the familiar ritual: all rise, stand up, sit down.

Danny heard the door open behind him.
Everyone is already
here. Who could it be?
he wondered. He turned to see his soccer coach, Sgt. Sandhu. He was in full police uniform. “Hi Danny,” he mouthed. Before Danny could wonder any more about it, the judge began reading from several typewritten pages.

“On June 21, 2002, this Court found Mr. McMillan guilty of aggravated assault and uttering threats against his wife. The Crown has asked that Mr. McMillan be sentenced as a dangerous offender. This is an unprecedented hearing.

“In deciding an appropriate sentence, the Court must remember the purpose of criminal law – to prevent harm to the people in our society. A crime is an act society will not tolerate. So, we punish the offender. This punishment is the signal – to the offender and everyone else – that each and every person will be held accountable for his criminal actions.” He turned the page.

“Now, regarding Mr. McMillan, I must ask myself several questions. What punishment will stop him from assaulting his wife again? How long does he need to be in jail to protect the public from further harm? Is there anything the Court can do to encourage him to change his behavior?”

The judge looked at Sandra. “I've heard what the prosecutor thinks I should do.” He turned to Mr. Miller. “I've heard what the defense thinks I should do.” He turned to Paul, who looked calm and well-mannered in his neatly buttoned suit. “The two proposals are radically different. The defense says he should be prohibited from possessing any firearms or ammunition and be sentenced to a total term of two years. The prosecution says he should be behind bars for at least seven years.

“This is the challenge of sentencing. The prosecutor is right when she says society is entitled to protect itself from dangerous criminals and, more specifically, that Mrs. McMillan is entitled to protection from an abusive husband. It stands to reason that the longer he's in jail, the longer his wife and society will be protected. It's the only way to
guarantee
safety.

“However, Mr. Miller is also right when he says the punishment must fit the crime, and no more. He says a long jail term as a dangerous offender would be punishment greater than this crime deserves.

“Assault is a violent crime. But this isn't simply a case of ordinary assault, if there can be such a thing. When a person is victimized in her own home – behind closed doors and away from the scrutiny of society, by a person who is to be her companion through life – it is more than a crime. It is a betrayal of trust.”