Lawyer appeared intoxicated in court
The Brampton Guardian
Sunday June 22 2008
BRAMPTON - A Toronto lawyer whose conduct in a Brampton courtroom resulted in two mistrials for the same murder case was cited with contempt because she appeared to be impaired. Criminal defence lawyer Karen Cosgrove will appear before Madam Justice Francine Van Melle for a show cause hearing in a Brampton courtroom on Aug. 27.
A publication ban on the fact Cosgrove had been cited for contempt– and the reasons behind the citation– was lifted late Wednesday.
A Toronto daily newspaper went to court last month seeking removal of the ban, which had been in place since Van Melle declared a mistrial in a murder trial on April 14. She also declared a mistrial for the same reasons on Nov. 23, 2007, during the first trial.
In both trials, Andrew Harris, 26, of Toronto had pleaded not guilty to second-degree murder in what legal experts said was Ontario's first road-rage prosecution.
Christymayooran Anton-Pious, 21, of Brampton died in a hit and run on Aug. 5, 2006. Prosecutor John Raftery contended Harris deliberately used his vehicle as a weapon to murder Anton-Pious, whom he didn't know.
Cosgrove was cited with contempt on April 11 after her conduct during a cross-examination of a Crown witness during the second trial caused Van Melle to excuse the jury.
It is unclear if any jurors were aware Cosgrove was exhibiting signs of impairment. But sensing trouble– and hoping to avoid another mistrial– Van Melle sent the jury away while she discussed the matter with Cosgrove and Raftery.
She imposed a publication ban to prevent the jury from becoming aware of the situation in the event the trial continued.
"Unfortunately, despite everyone's best efforts, it was determined the trial could not continue and a mistrial was declared," she wrote in her just-released decision.
In declaring the second mistrial, Van Melle never gave specific reasons to the jury. For the first mistrial, she told jurors Cosgrove couldn't continue for personal reasons. Despite the first mistrial, Harris still wanted Cosgrove to represent him during his second trial.
— Torstar News Service
He still wanted Cosgrove to be his lawyer even after Van Melle temporarily stopped the second trial, urging him to seek other counsel.
"You're going to be called to make a decision," she told him on April 10 without the jury or Cosgrove in the courtroom. "No matter what you decide, I may still decide differently ... if you decide to continue the trial with Ms. Cosgrove as your counsel, I may still decide that's not appropriate."
When court reconvened about two hours later, Cosgrove was still absent, apparently not realizing her presence would be needed further, according to court transcripts.
In her absence, Van Melle told Harris, who was temporarily being represented by defence lawyer Paul O'Marra, that letting Cosgrove continue to conduct the trial on her own wasn't an option. "Ms. Cosgrove has demonstrated to me that she's not able to conduct this trial without some assistance."
She advised Harris to rethink his decision. "This is the second time that Ms. Cosgrove's ability to represent you has been impaired," she told him away from the jury.
"I'm not prepared to allow her in my courtroom to continue on her own. So she's either going to have somebody else with her or we're going to call a mistrial and you're going to get someone else to represent you."
Cosgrove returned to court later that afternoon.
In an effort to continue, Van Melle gave Harris the option of continuing the trial with a veteran defence lawyer from Cosgrove's firm, who could assist her, something the lawyer had accepted.
Raftery urged the court to rethink that option. He believed Cosgrove could get into more problems the farther the trial went with Harris not getting proper representation.
He advised the judge he had been aware of problems in the courtroom before they came to the attention of the court, including smelling an unknown odour. However, he said there were no physical manifestations and admitted Cosgrove still conducted herself well.
Van Melle told Cosgrove that if she stepped down and allowed another lawyer to take her place, she could still assist behind the scenes.
But she wasn't prepared to have her remain as Harris's lawyer and risk a third mistrial.
It was determined by all sides that it would be unfair for any new lawyer to take over the case.
In the paper's argument against the publication ban, Crown Attorney Steve Sherriff said the ban should be lifted because doing so would not interfere with Cosgrove's right to a fair hearing or interfere with Harris's right to a fair trial.
Cosgrove's lawyer, Jack McCulligh, urged the court to keep the ban in place because of the harm it would do to Cosgrove's reputation.
He said that Cosgrove had only been cited for contempt, not found guilty. He argued the potential damage to her reputation outweighed the public's right to know.
He also described his client's condition as a disease and said she is now in a rehabilitation facility.
In lifting the ban, Van Melle said it had been imposed to protect a fair trial should the second trial have continued.
But once the mistrial was declared she found the concerns were no longer present.
"While I'm mindful that Cosgrove may suffer damage to her reputation as a result of the contempt citation, her situation is no different than anyone else who has charges pending against him or her."