User talk:Oldlawguy

I am the attorney who represented Thomas Bernard Brigham in his second appeal before the Quebec Court of Appeal. At the time, I was the Director of the Criminal Appeals Division of the Montreal Legal Aid Bureau (under the aegis the Commission des services juridique of the Quebec Department of Justice.)

Towards the end of the Wikipedia entry ([]), this appears:

The verdict and sentencing of the second trial were identical, but led to another successful appeal request by attorney Jay Rumanek, arguing that an earlier defence attorney, Michael Kastner, had committed errors after learning Brigham could not testify to the jury.

In my view this statement is inaccurate and misleading. The errors made by Mr. Kastner were not made, as stated in the current Wikipedia article, ″...after learning Brigham could not testify to the jury.″

The full text of the judgment of the Court of appeal may be found here (copy and paste to browser):

http://citoyens.soquij.qc.ca/php/decision.php?ID=1C1B94238AC90EEB9CB4029389A478A5&captchaToken=03AOLTBLR8vB_YY6RI2PGge4nK2bKn2isfsVXxUDeDIoue4y8G1s224PHWgEjgQN2oVhsvJwFtwtD4_020DG6mseAwUrx6YyfCjNabeUlvlVuz55pNNeGrpvdObJ7_GF8r28_Gr0tbro95udlQw49B7cTzsF9f7EnDp8Px3Y8913ISTRbmCHDJHHKzDiDXl7t7aclsYfOm_GQ1iE__arW_n50Udste95kV7nYd2gzEjtdGQMpntfht4WjJx1-0XS_olWuBm3THMGNAzFCLECfFAXLyCooioGPZ7KP9ltlYz2tSIsdlbNC4pHPiZdSZLiySjb_DDjJtdnnuTpB9MW40yXWSiI54OSuasUJWaADdlExR3GRw5Yto9W_nuBqzW8YAj6TP2z6WEM5d_LedEtOwRdPaIAEdbwYIWg

As noted in the judgment rendered by Mr. Justice Morris Fish, the appeal was essentially based on this (judgment, p.17):

Appellant's argument in support of his first added ground merges, compellingly in my view, three issues: the incompetence of his counsel, failure of his counsel to respect the terms of his retainer and the unfitness of appellant to stand trial. In appelant’s factum to the Court, I put the matter this way (judgment, p18):

''If Mr. Brigham could not, as Mr. Kastner states, make any rational decisions, then the attorney had an obligation to his client to raise that issue before the Court. If Mr. Brigham was able to make decisions, then Mr. Kastner's obligation was to respect the wishes of his client. Either way, Mr. Kastner failed to protect the interests of his client.(17)''

Mr. Justice Fish, in conclusion, stated this (judgment, p.18):

I believe the appeal should be allowed on the narrower grounds concerning appellant's frustrated desire to testify, appellant's fitness to stand trial, and the effect of his counsel's handling of these two matters.

In other words, the Court ordered a new trial because

1) the accused had clearly indicated throughout the proceedings that he was innocent and had instructed his counsel that he wanted to testify to that effect,

2) that the fitness of the accused to stand trial was clearly in issue in the minds of all concerned but the attorney representing him at trial failed to raise this matter before the Court, and

3) the manner in which counsel for the accused at trial handled these two matters deprived the accused of a fair trial and the right to make what in legal jargon is referred to as “full answer and defence.”

Oldlawguy (talk) 14:08, 20 September 2019 (UTC)