CKNW Editorial
for May 9, 2000

I'm going to make many of you angry with what I'm about to say and I only ask that you listen very carefully at what I'm about to say.

Yesterday my colleague Peter Warren asked, who judges the judges? Today I ask, who judges those that judge the judges - in extreme haste? Whether or not the following remarks apply to Peter I'll leave to him . I did not hear the show. But they sure as hell apply to John Reynolds.

I didn't editorialize on the David Trott matter yesterday because in reading and listening to the news reports on the weekend, I sensed that we hadn't heard the whole story. For at first blush it would seem to be that Judge Susan Antifaev negligently released this monster Trott into the community where it was likely he's re-offend. It also appeared initially that the judge simply got impatient and wouldn't wait, as was requested by a social worker, for another 12 days for a psychiatric assessment on Trott before sentencing him it somehow being assumed that against all his past history, this was a man who was about to strangle a nine year old girl. Now we know something that we all should have known before commenting - the judge hadn't asked for the psychiatric assessment in the first place, defence counsel didbecause he thought it might help Trott when it came time to plead on sentence.

Let me say at this point that I don't know any of the people involved and I personally have damned little reason to come to the defence of judges. But this is not an easy situation.

First of all, let's remember that under our system a person can only be detained for good cause. We have a right for which millions around the world have shed their blood and died for - the right to a writ of habeas corpus to command a judge to deliver up the person or show just cause why she should not. No one - very much including rank and file policemen and social workers would want to live in a system where a person could be detained simply because a social worker or a policeman thought it was a good idea. Now let's deal with the facts.

Trott was convicted on January 27th last - note that date - January 27th for assaulting and threatening a woman and stealing a van and a car. He had a previous record carrying a concealed hand gun and possession of a weapon for which he had been jailed for five months. You will note the absence of any record, so far as I am aware, of any offences against children. When the Judge convicted Trott on January 27 the offences before her plus Trott's record were all she had to go on. Remember that ... and remember that she did not have before her that which has now been discovered by the media from interviews with Jessica's neighbours, her father and friends. She had that much of Trott's criminal record as the Crown had entered into evidence.

Defence counsel obviously saw a troubled young man and asked for a psychiatric assessment before sentencing - the judge consented and therefore postponed sentence until May 17 - nearly four  months hence ... in fact 121 days ... more than 17 weeks.

On April 19, 11 weeks after the report was ordered a psychiatric worker informed the judge that the report could not be completed until May 14, 12 days after Trott was to appear to be sentenced.

Now this is what the judge had to consider. Trott wasn't going anywhere - he was in jail - so the delay of the examination was scarcely his fault. If he couldn't be sentenced on the 2nd, there would have to be a further delay that accommodated not only her own schedule but that of crown counsel and defence counsel. That could easily have meant another month or so. The judge did ask defence counsel at the sentencing hearing  whether or not he would like to have the assessment done and he said no. That was his call.

Now let's pause again and remind ourselves that the judge had not detained Trott for a psychiatric test because she had any reason to believe that he was the sort that would murder a child - the crime of which he is now charged. Nor can one assume that a psychiatric report would ever have stated that Trott was a potential dangerous child offender. It may have - but if it did, it would have been based on evidence not available either to the police, the prosecutor or the judge. In all likelihood it would have shown a man prone to violence by reason of FAS, fetal alcohol syndrome.

But the critical point here is that the judge only sought the psychiatrist assessment because defence counsel asked for it. And it may well have been that Mr   Dan Henderson, the defence lawyer, simply told the judge that his client didn't want to wait and wished to be sentenced. That was his right. And this is important - the only evidence before the judge gave no indication whatsoever that here was a potential child killer. Her discussions with the defence lawyer showed a concern that Mr Trott had problems and that she hoped he would get help for those problems ... and defence counsel assured her that he would.

The judges handling was above reproach and those who have hastily said otherwise owe her an apology - a strong apology. One can only begin to imagine how the slangings from politicians and the media  haunt this woman's life. .

In the House of Commons yesterday the past master of raising temperatures when there is a crime, John Reynolds, set his hair on fire and demanded the judicial equivalent of the death penalty for Judge Susan Antifaev. How easy that is. Don't think about anything for a moment - just shout from the top of your lungs what the bottom feeders want to hear. It takes time and trouble to look at the facts and come up with a fair appraisal and when there's a child's murder to make political hay from, for cheap shot politicians like John Reynolds there's not a moment to waste. To hold the judge responsible for the tragic and terrible death of this little girl is cruel and unjust.

Let's look at what really went wrong here. The Ministry of the Attorney-General was unable to do a psychiatric assessment given four months in which to do so. Perhaps it might not amiss to speculate why this is so.

Could it be that the man in charge, Mike Quinn, director of the Forensic Psychiatric Institute took a look at this case and decided that it wasn't a matter of high priority? This Trott guy was a bad actor but he hadn't killed anyone and was just another of what is all too common in our society - an anti-social male who would be in and out of jail his entire life. I ask this not out of criticism but by way of saying that the Criminal Justice system simply hasn't the resources to see the David Trotts of the world in less than four months. His sort go through the justice system by the bushel. What's the judge to do? Trott is like dozens of others that appear before her and her brothers and sisters on the bench every day and if you tied up the system for four months every time you thought a criminal had mental problems it would be judicial gridlock. However the bottom line for me is that given what we now know, ie the death of nine year old Jessica Russell, it's very easy to blame the judge for freeing Trott. But on the evidence before her there was no way the judge could know this would happen, or was likely to happen - indeed killing a child would probably be the last thing to come to a judge's mind looking at this young man and his record ...  and in light of the fact that she only ordered the assessment because defence counsel requested it, she in every way behaved appropriately.. But I would ask the Premier - since he was Attorney-general at the time - what kind of a system is it when a psychiatric assessment is ordered by a judge, no matter who asks for it, it cannot be completed with nearly four months lead time.

Should she have when on April 19th she was told the report wouldn't be ready on time, have postponed sentencing?

Of course she should have if she had any reason to believe that Trott was a child slayer (which he has not yet been convicted of we must remember). But the judge did not have those psychic powers. Not even John Reynolds has that kind of power - except in hindsight ... he's very good at hindsight. It is an unspeakable crime. But if you're looking for a scapegoat, don't look at the judge she did nothing wrong unless you think her judicial powers extended to looking at a young man before her - like so many others she sees every day ... and concluding somehow that this man was about to murder a child