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Coaxed witness, amnesiatic reporters enable Paciocco's show trial theatrics

They came for their pound of flesh, scales and carving knives in their fists.

And when Derek Harvey-Zenk refused to give it to them, they left howling for blood.

Winnipeg Sun columnist Tom Brodbeck thundered:
"Harvey-Zenk could have at least shown some remorse yesterday
When asked by commission counsel if he'd like to say a few words about any aspect of the tragic event -- you know like "I'm sorry," or "I feel so badly for Crystal's family" -- he said: "No."
What do you mean, no?
You killed someone's wife, mother, daughter, sister, cousin and all you have to say is "No?"
I've seen more remorse from a piece of bark."

Winnipeg Free Press columnist Gordon Sinclair oozed:
"The truth, as they say, might have set him free. Instead he claimed, unconvincingly, to be a victim of memory loss. But, he can't blame memory loss for forgetting to do the right thing. And say "sorry"."

Certainly Brodbeck and Sinclair shouldn't pretend they're interested in the truth. If they were, all they had to do was look in their archives.

There they would find that Harvey-Zenk DID APOLOGIZE to the family of Crystal Taman, the woman killed when he rear-ended her car in February, 2005. He apologized almost one year ago this month on the day he was sentenced for dangerous driving causing death.

"I have taken away someone loved and cherished and for that I am profoundly and sincerely sorry ... I know I have hurt you deeply and wish I could take away that pain."

(The Winnipeg Sun, Aug. 23, 2007)

"I've taken someone away who was so loved and cherished and for this I'm profoundly sorry," a stone-faced Harvey-Zenk said in a brief statement in court...I feel the need to apologize to so many people, especially the Taman family. I hope everyone can hear the sincerity of what I'm saying."

(The Winnipeg Free Press, Aug. 23, 2007)

And if the sanctimonious columnists were interested in the truth they would have reported that the apology was rejected outright by Robert Taman, the husband of Crystal Taman.

And they would have reported that Harvey-Zenk was not asked at the Inquiry if he wanted to say anything to the Taman family, he was asked if he wanted to say anything TO THE COMMISSIONER, or anybody else.

And they would have reported, as FP reporter Kevin Rollason did in his news story, that Taman and his entire family theatrically "filed out when the former officer was asked if he wanted to say anything."

And they would have reported, as did Globe and Mail reporter Joe Friesen, that Taman is so consumed by anger, hatred and bitterness that nothing Harvey-Zenk said would matter to him.

The news reporters had their own roles in the orchestration of the Taman Inquiry show trial.

Their stories concentrated on mocking Harvey-Zenk's claim of suffering memory loss.

During his testimony yesterday, Mr. Harvey-Zenk...used the phrases "I don't recall," and "I have no recollection" more than 20 times, reported Friesen in the Globe.

That's because he was asked 20 questions the Inquiry counsel knew he couldn't answer. It was all carefully choreographed to manipulate the press coverage.

Obviously, it worked like a charm.

Asked why he couldn't remember anything about the day of the accident, Harvey-Zenk said it had been suggested his memory loss was due to a blow to his head during the car crash or to post traumatic stress.

The Inquiry counsel declared there was no evidence Harvey-Zenk suffered any kind of blow in the accident. He was wearing a seat-belt and his truck's air bags deployed, hitting him in the face and causing a little bleeding from his nose. The paramedic who examined him found him alert, his eyes clear, his grip strong, and responsive to questions, the Inquiry was told.

The reporters failed to note that this description is the opposite of someone who is "pissed" and would have been used by a defence attorney to prove it.

Inquiry lawyer David Paciocco flourished a presentence report from a psychiatrist which, according to him, said Harvey-Zenk suffered no sign of memory loss.

Harvey-Zenk's lawyer, Jay Prober, raised an objection. The report was prepared 2 1/2 years AFTER the crash and referred only to that period of time, he said. Paciocco should bring the psychiatrist to the Inquiry to give evidence under oath if he was alleging the doctor was speaking about the day of the accident.

Commissioner Roger Salhany, declined the challenge, something NOT A SINGLE REPORTER thought was newsworthy although every one of them quoted the psychiatrist's report as proof Harvey-Zenk was faking.

The witness said he was seeing a psychologist in Brandon who had suggested he was suffering from post-traumatic stress syndrome.

Commissioner Salhany saw an opportunity to recover some of his lost credibility.

"Did you bring along a medical report from this doctor?" he demanded.

THE COMMISSIONER: " … have you obtained a report from him for the purpose of this inquiry?"

Prober responded nimbly.

Q Anybody ask you to obtain a report from him?
A No, sir.

"No." Just how important this exchange was will be revealed in a moment.

Taman Inquiry lawyer Paciocco worked diligently to discredit the testimony of Harvey-Zenk. But a day earlier he worked overtime to do the opposite with witness Brian Gover, one of two experts in the field of independent prosecutors called to testify.

They needed two.

They ran into a problem when the first one they called, Richard Peck, agreed with Manitoba special prosecutor Marty Minuk that three of the most serious charges against Derek Harvey-Zenk (impaired driving causing death, criminal negligence causing death, and refusing a breathalyzer) had to be dropped because there wasn't enough evidence to take them to court.

And Peck conceded that Minuk did the right thing to accept a guilty plea to dangerous driving causing death and, based on Manitoba precedents, agree to a sentence of house arrest.

Damn. That wasn't what the Inquiry wanted to hear. They wanted him to criticize Minuk, not support him. So they dug up another "expert." And this time, they made sure they got the testimony they wanted.

Gover started by saying he, too, agreed Minuk had no choice but to drop the three most serious charges for want of evidence.

But something was odd about his testimony.
He gave every indication it was carefully staged.
Rehearsed in fact.

Deliberately or not, he peppered his testimony with hints such as:

"And I know that you and I will discuss that further..."


"So for various reasons that I know we will discuss in greater detail, Mr. Clifford…"

Gover said he disagreed with Peck over the issue of the plea bargain that saw Harvey-Zenk escape jail time. He said Minuk should have argued in court that any evidence of consumption of alcohol on he day of the accident was sufficient to bring the hammer down on the off-duty police officer, regardless of whether his driving was impaired. And, as a police officer, he should have received a jail sentence as a signal to the public that drinking and driving would not be tolerated.

But in giving his evidence, Gover dropped a bombshell.

His opinion on this matter, he said, had been framed by lawyers for the Taman Inquiry.

They did everything in their power to, shall we say, "help" the witness reach a conclusion, the very conclusion they wanted to hear.

In short, they wanted to discredit Minuk, and when their first witness wouldn't do it, they found another who would, even if they had to give him the ammunition to do it and carefully rehearse exactly what he was to say before the Inquiry.

Some of Gover's testimony:

"I also reviewed a memorandum prepared by Commission Counsel which fortified my conclusion in that regard."

"Q Research conducted by the Commission and other lawyers that assisted us have suggested, sir, that the sentence that was imposed, with respect to the Manitoba jurisprudence, was a fit and common sentence in this jurisdiction.
A I have reviewed all of those cases. And I note what Chief Judge Wyant noted, which was that none of them involved a police officer. And you have my point and we've had the discussion, I believe, that once the fact of drinking prior to the collision was taken off the table, the fact that Mr. Harvey-Zenk was a police officer at the time lost much of its significance."

"I've also had the benefit of reviewing a memorandum that was prepared for Commission Counsel, and it caused me to conclude that, in fact, most Provincial appellate courts have concluded that consumption of alcohol, even in the absence of some evidence as to effect on driving, but consumption of alcohol coupled with driving is an aggravating factor for the purposes of offences such as dangerous driving causing death."

Not one reporter caught the significance of Gover's testimony.

Inquiry counsel never asked Harvey-Zenk for a report from his psychologist, because they didn't want one.

They wanted to discredit him and a report from a professional would undermine that effort.

But they went so far as to provide Gover with the very evidence they wanted put before the Inquiry, evidence which they planted and will use in their final report.

The Taman Inquiry was a carefully orchestrated piece of theatre - a modern Punch-and-Judy show. And the press had their role, and it wasn't that of fair and independent observer.

... cue the Black Rod feature: Professional Reporters at Work

In a controversial plea agreement in 2007, Mr. Harvey-Zenk, who had been up all night partying before the 7 a.m. crash, was convicted of dangerous driving causing death and sentenced to two years house arrest. In exchange, all alcohol-related charges were dropped, as was a more serious charge of criminal negligence.

( Memory virtually blank on crash, ex-officer says, Joe Friesen, Globe and Mail, August 7, 2008)

Three other serious charges -- including impaired driving causing death -- were stayed as a result of the plea bargain.

( "Sporadic' recall, By Shannon Vanraes, Sun Media)

"... other charges facing the accused had been stayed not because the accused had pled guilty to dangerous driving causing death but because the Crown was of the opinion there was no legal proof to proceed with those charges.

(Manitoba Chief Provincial Court Judge Ray Wyant, October 29,2007)


We'll give the last word to Judge Wyant, who showed amazing prescience when sentencing Harvey-Zenk in October, 2007.

"They want their pound of flesh. They want to hear the clanking of the cell door.

But let me make it absolutely clear, Mr. Zenk, those factors are not something this court or any court can entertain in deciding a fit and appropriate sentence. To do so would corrupt the very foundations of our justice system and plunge our system into chaos. So it does not matter what we think happened, what we must do is only sentence or decide cases on the evidence before us.

If we were to substitute our opinions or the opinions of others for proof and evidence, we would surely undermine fundamentally our system of justice. For to replace our feelings or opinions for facts would mean that any citizen could be the subject of arbitrary justice, of decisions based, not on evidence and proof, but on innuendo and personal biases.

Sentence delivered
October 29, 2007
WYANT, C.P.J. (Orally)

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