Last week we described a near-fight that took place between a Crown witness, Todd Kealy, and the defence lawyer who was cross-examining him, Reid Rusonik. The upshot of the imbroglio was that the judge ordered Rusonik to have no contact with Kealy, and another lawyer was retained to finish the cross-examination. Rusonik apparently remained on the case as counsel. The trial resumed with Kealy's continued cross-examination, but after a break the court learned that Rusonik had defied its order and made contact with Kealy, it appears because he was concerned that Kealy was out for revenge and might hurt Rusonik's family. Rusonik ended up taking the stand in order to provide this explanation to the court. As matter then stood at that point, the judge was considering whether to order a mistrial.
Last Thursday the Judge Mossip court took the only viable option left to her: she declared a mistrial.
The result is no surprise. In fact, one wonders that a mistrial was not declared as soon as Rusonik challenged Kealy to a fight and verbally attacked him with profanities. While counsel must take an adversarial position in cross-examining a witness adverse to his client, encouraging the witness to engage in fisticuffs and calling him "fuckhead" and a "little shit" is way, way over the line. Rusonik became personally involved in the case to such an extent that his role as officer of the court was undermined. Defying the judge's order not to have contact with Kealy was more of the same. His actions were disrespectful of the witness and the entire judicial process, and his continued presence on the case tainted his client by association.
Moreover, when Rusonik engaged the witness in such a manner he became personally, as opposed to professionally, involved in the case. From that point onwards, the judge could have no confidence that Rusonik's own views, as opposed to his duty to his client, would not colour his submissions. More than this, it appears that Rusonik's credibility in terms of his justification for treating Kealy as he did was in issue (otherwise, why did he take the stand to explain?). He could hardly stay on the case in such circumstances.
One wonders why Rusonik felt compelled to act as he did. He is an experienced defence counsel, who should have known better. His outburst harmed his own reputation and more importantly his client's case. Surely having the key Crown witness utter what appeared to be a threat to cross-examining defence counsel was a boon to the defence. Provoking a mistrial by challenging the witness to a fight and breaching a court order wiped away any benefits for the client.
A final point. At the mistrial application, as reported in the media, Crown counsel noted that Kealy had in fact given no evidence harmful to Rusonik's client in his testimony in chief. If this is true, the entire cross-examination was ill-considered. Keeping quiet would have been the wise tactical move. It is hard to understand why this course of action was not followed. Will there be a complaint to the Law Society of Upper Canada? To ask the question is to answer it.
