Final submissions today, and there are huge questions hanging over the Crown’s case. Bear in mind that the players are supposed to be the victims here: Frost was in a position of trust over them. The girls are presumed to be participants in consensual sex.
Yet the one player we watched on Thursday was testifying for the defence, not the Crown. The gist of his story? That Frost, though deeply involved in his players’ lives, had nothing to do with group sex in which these young men appeared to be regularly engaged from the time they were, oh, 16 years old, and living in Deseronto, Ont., while playing for Frost’s team, the Quinte Hawks. There was a discernible sense of incredulity in the room toward this testimony. If Frost was not engaged in group sex involving with the players, a cynic might have thought, he was the only one within five miles who can say so.
The Crown was able to convey the sense that Frost’s former players are protecting him for some reason. He was clearly a strong presence in their careers and personal lives, at times driving wedges between them and their families. He even wrote them a kind of manifesto, which our witness last Thursday claimed he filed away and forgot about.
Still, the “reasonable doubt” hurdle looks awfully high. When your victims are testifying for the defence …
P.S. I hope to be a little more expansive in my own submissions today. I’m working off my lap-top keyboard, thanks to a high-speed internet “stick” supplied by the folks at Rogers. Wireless reception is a bit spotty in the court, but it should be a vast improvement over my BlackBerry.
Sorry for the delay everyone. Turns out reception in the court isn’t good enough to support computer transmission. Here’s what’s happened so far:
10:40 a.m. — Under way at last, with a surprise final witness for the defence: Dr. Hubert Manning. This is the long-awaited “third-testicle evidence.” It turns out Dr. Manning is Frost’s GP. Recall, this was raised by the defence as potentially exculpatory evidence, as one of the women who testified to participating in group sex with Frost and his players did not recall seeing it.
Dr. Manning has vague memory of Frost arriving in early 1994 with some sort of groin hernia, for which he received treatment from another physician. By June 1994, Frost had “significant swelling”—a hematoma—below the hernia site, right at the crease where the leg meets the abdomen. “Not the scrotum exactly. Just adjacent to the pubic area.” It’s size at the time was 5x5x3 cm, says the doctor.
Subsequent visits revealed that it had turned into a bulb of congealed blood lying under the skin. By 1998, Frost “had a large, plum-sized lump, protruding, just to the left of the scrotum, “pointing downward.” It was adjacent to the shaft of the penis, says Dr. Manning.
“It’s consistency is harder than a testicle,” and visible to the naked eye, says the good doctor. “Those kinds of swellings shouldn’t be there. It’s obvious, is probably the best way to describe it.”
10:55 a.m. — On cross-examination by Crown, Dr. Manning testifies that the lump is located at the base of the penis, to the left of the pubic area above the scrotum.
Would it be normally covered by pubic hair?
Could be less obvious, if person was reclining or sitting in a different position.
“Without touching it? Correct.”
According to Dr. Manning, on redirect, the lump is still there. He has seen it recently.
With that, the doctor is finished.
My own thoughts: while the judge may differ, it seems what we’re talking about isn’t so much a third testicle as a disgusting cyst sticking out of Frost’s pubic area. Whatever. You’d think it would be pretty evident to anyone having sex with Frost.
11:05 a.m. — The judge is now deciding what weight to put on a diary belonging to Kristy, one of the female witnesses who testified earlier that she had sex with Frost and his players.
Says he’ll admit it as an exhibit to consider when assessing the credibility of Kristy’s testimony, which the diary apparently echoes. But it can’t be considered a form of witness statement or evidence, because no one can say when it was written.
11:12 a.m. — the Crown, Sandy Tse, is ready to close. And he starts by addressing the gaping hole in his case, namely, that he doesn’t have the alleged victims testifying for the Crown. He asks that the judge disregard the testimony of the two former players who denied Frost was involved in group sex with his players, and put stock in that of Kristy and Jennifer, the two young women who testified he did. “It’s a simple variation on a he-said, she-said trial.”
The detail of the girls’ testimony is richer, and more reliable, the Crown says. The defence contention that they fabricated it is not supported by any sense of motive. They’re not claiming they were assaulted, or even that Frost did anything illegal. They’re not out to get him, says Tse.
11:20 a.m. — On the first player: “There can be no doubt of his reluctance to be here, to testify, give evidence or say anything negative about David Frost.” His evidence is “biased,” says Tse. “He remains loyal to David Frost and throughout his testimony was seeking to protect him.”
Other things suggest the basic credibility of this witness is a problem, says the Crown. He points out that the player denied seeing a physical assault on another player that “so many other witnesses saw.” “(The players) are unwilling to admit the assaults committed by Mr. Frost upon themselves. It shows that loyalty to David Frost … I suggest that (the player’s) evidence should not leave you with a reasonable doubt.”
On the second player: “Again, you have this consistent effort to shield Mr. Frost from the offences.” He, like Player 1, admitted to engaging in two-on-one sex with practically everyone in the tight-knit group, except Mr. Frost, Tse points out. “This evidence cannot be believed, should not be believed.”
11:30 p.m. — Now to the women, and Tse wants to highlight aspects of their testimony that speaks to its veracity. He emphasizes that they were testifying to choices they made as 16-year-olds verging on their own sexual discovery.
Same goes for the boys, says the prosecutor. “This is the time when all the parties except Mr. Frost were vulnerable to doing things they might not as adults.
“They were shy, eager for approval or acceptance by people who might be considered the town heroes of Deseronto back in 1996 and 97.”
11:35 a.m. — Tse’s making an assertion—a bit vague in my view—that the nature of chatter between the two girls, as they recalled it here in testimony, was “so real.” Their dithering, their giddiness, their uncertainty about engaging in group sex have the ring of “true recollections,” according to the Crown. “They not only come from the heart, but from actual experience of (the events).”
Tse points to recollections by Kristy that are too detailed, and heartfelt, to be made up—the burn she got from Frost’s shaved pubic area; her decision to bring bubble bath to one of the encounters in a naive attempt to make the whole thing more romantic.
Now cites the diary entries, which are pretty graphic, recalling the encounters involving Frost (the diary has been sealed by the court).
11:50 a.m. — As for Jennifer, says the prosecutor, she would do anything for the one player she thought she was dating. “She was unapologetic, she was unequivocal” that she was willing to put up with a sexual relationship with Frost to maintain her relationship with the player, notes Tse.
He points to a videotape admitted as evidence. It shows a party where Jennifer was, er, behaving badly. But you can hear Frost telling Jennifer take other girls’ tops off, says the Crown, which evidently she does. Basically, she did what she was told to please Player 2, by Tse’s reckoning.
Her frankness speaks to her credibility, the Crown addds. Like Kristy’s, her testimony demonstrated “she wasn’t acting out of malice toward Frost.” And it had rich detail, says the prosecutor: how she’d do anything for the player with whom she was smitten; how she was left shivering after sex with Frost.
12 p.m. — And that “third testicle?”
The Crown is trying to use Jennifer’s firmness and resolution that she didn’t see Frost’s cyst as proof of her credibility. “She remained true to her recollection,” he says; she didn’t try to shade it, or explain it away, which you wouldn’t expect in a fabrication, notes the Crown.
The judge at this point observes that Jennifer was “very calm” in all of her evidence. What conclusion can he really draw from the fact she kept her cool? he asks.
The Crown accepts that Frost has a cyst, “though one could debate how much it protruded from his groin.” (is this going to end with Frost dropping his pants right here in the courtroom?)
Jennifer didn’t have the inclination to look, Tse contends, and “if she really did look, would you really expect her to see, recognize and a process what was there.”
And now he’s done. Defence submission coming up.
12:35 p.m. — Defence lawyer Marie Henein generally agrees this is a contest of credibility. Not surprisingly, she sees the relative believability of witnesses differently.
She highlights inconsistencies in witness recollections from earlier in the trial, especially those alleging Frost was abrasive and controlling.
With regard to one previous witness, Ian Larocque (sp?), a former player of Frost’s, she cites head injuries he suffered playing hockey to suggest his memory might be faulty.
“He could not give a single detail or recall any context” of conversations he thought he had with Frost about group sexual encounters with the girls, says Henein. Same goes for his contention that Frost “ran things at the Bayview Inn” in Deseronto, where the players stayed.
As they say in hockey, the gloves are off.
12:45 p.m. — According to Henein, the Justice Geoff Griffin should reject the testimony of the witness Jennifer: her key visit to the police in 2004, where she opened up about all the sex, was prompted by a conversation she had with a reporter, having had “her eyes opened.” In other words, Henein suggests, her recollection has changed to suit a new purpose, which is putting Frost away.
Henein has a staccato delivery, which gives her submission a rushed feel. But she’s hammering quite effectively at every little inconsistency in Jennifer’s testimony. The judge himself notes that Jennifer had changed her story about the nature of the alleged encounters two or three times over the past decade. In 1998, she said she “gave in” to the players and Frost when it came to group six. In 2001, she denied being “sexually assaulted” by Frost, saying the acts were consensual. Now she’s a Crown witness in the case against Frost.
Henein also points out that Jennifer is not as intimidated or controlled by Frost as she and the Crown have purported. She had a good, middle-class upbringing, and had means to do as she pleased, says Henein: “She travelled everywhere, by planes, trains and automobiles.” She saw Player 2 when she pleased; only problem was, Player 2 was avoiding her, says Henein.
The defence goes on to cite Player 2’s boasts about having sex with all manner of women “who have never heard of David Frost” to prove the idea he was under Frost’s control is absurdity. “This is not a child we’re talking about. He’s an NHL hockey player,” Henein says. She thinks for a moment, then adds wryly: “This is not a time for us to try the misogyny in the hockey world. If I could I truly, truly would.”
The judge is chuckling.
12:55 p.m. — Next up on Henein’s hit list: the medical evidence on Frost’s groin lump-third testicle-cyst, whatever you want to call it. Jennifer’s testimony is that she “did it on top, touching and performing oral sex, 25-30 times with Frost over the six years,” Henein notes. On the stand, Jennifer even made a hand motion of “masturbating” Frost, Henein says. How could she miss it? “This isn’t a mole. It is an egg-shaped protrusion or abnormality. Her explanation defies credibility.”
1:10 p.m. — Now Henein’s making an argument about a culture of group sex in hockey (huh?) “We’re not trying hockey. We’re trying Mr. Frost,” she acknowledges again. “But (group sex) is something known in the hockey world. It’s not peculiar to Deseronto. It may not be a good thing, it may not be a nice thing. But it is not something Mr. Frost invented.”
I guess this is meant to demonstrate that no one was violating anyone’s trust, that group sex and hockey go together like gin and tonic. But it may come as news to hockey players who live boring lives devoid of frequent group sex. It may be time to commission a poll of players.
1:15 p.m. — A later incident during a party at the aptly named Twin Peaks Motel in Napanee has come up. Jennifer had described a sexual encounter there (not sure on number of participants), but the defence points out that the whole gathering was set up by Jennifer. So much for Frost playing choreographer to all of the players’ sexual activities.
I must say, Justice Griffin seems increasingly sympathetic to Henein’s arguments. He frequently interjects to agree with her premise that Jennifer’s evidence is brittle. Henein was about to suggest that Kristy and Jennifer colluded to generate similar evidence. They’re close friends, known each other all their lives etc, she says. Just then, the judge prompted her to get into a past theft for which Jennifer was convicted. If I’m the Crown, I’m starting to sweat.
1:20 p.m. — Henein submits that the diary discussed above and an email in which the pair of girls discussed the group sex have the aura of manufactured evidence. Judge asks if Henein can cite a motive for collusion. She can’t, other than Jennifer’s stated desire to help with the police investigation.
1:45 p.m. — We just went through some case authorities on collusion, not all of which I grasp. But Henein’s drift seems to be that the court should consider the possibility that Kristy and Jennifer put their heads together throughout this whole thing, that Kristy was largely led through it by Jennifer, who is evidently more assertive. As a result, argues Henein, the judge should be skeptical about the quality of their testimony.
She’s not done, but the court breaks to deal with an unrelated case. I suspect the Crown is grateful, and our beloved national game needs to go lick a few wounds, too. Back after an hour.
2:37 p.m. — I should note that before the break, Henein underlined another serious problem in the case, namely, that one of the counts against Frost relates to an incident in which Kristy testified Frost had no involvement—not even directing the activities. She’s back on that now, arguing that the contact was instigated by the girls and the players, not Frost.
Justice Griffin now has the Crown, Sandy Tse, on his feet to explain. Tse points to questions Frost asked after the fact about what sexual positions the girls used etc.
Henein points out that Kristy on a couple of the relevant occasions admitted she was “too drunk or stoned” to know whom she had sex with.
2:45 p.m. — Henein notes that Player 1 testified to having more group sex when he got into university hockey. Threesomes, foursomes etc, etc. Egad. I know hockey players have a reputation as horndogs. But I think a lot are going to feel ripped off when they read accounts of this trial.
2:50 p.m. — We’re on to Player 2, whom Henein describes as a highly independent person who co-owns a thriving, hockey-related business (it cannot be named to protect his identity).
Justice Griffin is remarking on how all the witnesses—players and women—have gotten past this period and are living successful lives. Which feeds nicely into the defence’s position that Frost wasn’t interfering in some devious way with them. “That belies this theory of a cult that was going on,” says Henein.
It does. But let’s not forget that one of Frost’s former players, Mike Danton, is in a U.S. prison for plotting Frost’s murder. He’s not living a successful life, and the Crown contends that the rest of Frost’s cadre have since circled the wagons, as a result.
3 p.m. — Henein’s now listing all the stuff Jennifer got up to without Frost’s prompting, including having sex with Player 2’s younger brother. She also stayed in touch with Player 2 long after they met in Deseronto, the lawyer remarks.
The turning point, says Henein, is when Player 2 says he has found another woman. At that point, she goes to police and begins disclosing information. Why? Because she wants to “help” Mike Danton, who by then was in the news facing murder charges. “This did not fall out of the sky,” says Henein.
Summing up, Henein says: “At the end of the day, what you have is evidence from the victims, who say this did not happen.”
With that, she is done.
3:10 p.m. — Tse, the Crown, rebuts with the argument that the defence and its witnesses have tried to smear Jennifer, using the “puck bunny defence.”
Judge: “The Crown has (Jennifer) as an automaton under the control of Mr. Frost … I may not find her to be an automaton. I think it’s open to the defence to make the case that based on the evidence that just doesn’t make sense.”
Tse now points out that abuse victims are known to go back to their abusers. Then, for some reason, he again starts to talk about the Jennifer’s seemingly libertine sexual conduct, I think to argue that it can obscure other important facts of the case.
Again, Justice Griffin interjects: “You are so focused on her sexual conduct. I really could care less about her sexual conduct! You seem to be more focused on it than I am!”
Mercifully, we’re done now. Frost learns his fate on November 28, but there is plenty to talk about in the meantime. Is there anyone out there to refute this notion that hockey—from junior on up to pro—is some kind of long orgy? I mean, sexual shenanigans are hardly new in pro sports, but the defence depiction in this case suggests hockey in Canada offers entrée to unrestrained debauchery for kids as young as 16. Have we been entirely naive about what these people—including the adults overseeing youth players—are up to?
One certainly hopes not.