Bob Mionske wrote a great piece on a crazy road rage incident on his blog at Bicycling magazine which he reprinted on his  BicycleLaw.com blog.  The incident was captured on film and has been thousands of times, including an annotated version on You Tube here or  here. Security cameras captured the incident.  Bob’s article discusses the disparity of the parties and the “spin” which the rich and powerful have the ability to create…

You Be The Judge

Steve Magas
The Bike Lawyer

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A swift public relations campaign couldn’t save a successful Canadian lawyer from the fact that he ran down and killed a bike messenger.

By Bob Mionske

He was Metis, one of the officially recognized aboriginal peoples of Canada. The oldest of eight children, at the age of six he had been adopted by a foster family, together with his four-year old brother, as their mother struggled with an alcohol addiction. “We just grew up with poverty, with nothing,” his younger brother, now serving time for drug trafficking at Stony Mountain Prison, near Winnipeg, noted. “We probably had one of the hardest lives growing up. A lot of foster homes. Broken-down families.” As a young man, the older of the two brothers had gotten into trouble with the law over some bad checks, and had left his home town for a new life in Toronto, where he struggled with his own addiction to alcohol. For a time, he was living on the streets, homeless, but for the past several years the avid cyclist had worked as a bicycle courier.

A province away, another boy, 10 years his senior, was growing up. It might as well have been a world away. This boy’s father had been a mayor, and when he grew into adulthood, he also would take up the mantle of public service, exceeding his father’s own accomplishments. But first, there was university, where he earned his Bachelor’s Degree, and then a Master’s Degree. Afterward, he entered law school and after completing his law degree he continued his legal studies at Harvard Law School, where he earned an advanced law degree, graduating magna cum laude. Following law school, he clerked at the Supreme Court of Canada, before accepting positions with two of the largest and most prestigious law firms in New York and Canada. A Fullbright Fellow, this brilliant man also taught law while in private practice, first at the University of London, and later, at the University of Toronto. He entered politics with his election to the Ontario Legislature, and later served in cabinet posts, first as Attorney General, and subsequently as Minister of Aboriginal Affairs, and Minister of Economic Development. In May of this year, he resigned his cabinet position, to take a position as CEO of Invest Toronto, but it was widely believed that it was only a matter of time before he would become Ontario’s Premier. And beyond that?

Darcy Allan Sheppard and Michael Bryant came from different worlds, but when they met in the heart of the posh shopping district on Toronto’s Bloor Street, their worlds violently collided. In the wake of that collision, one life ended, and another lay in ruins. On the night of August 31, Sheppard—the Toronto bike messenger—and Bryant—the Toronto politician—both on their way home, became involved in a minor traffic dispute that quickly escalated into a violent incident of road rage, and within moments, Sheppard lay mortally injured on Bloor Street. Within hours, Bryant faced charges of criminal negligence causing death and dangerous operation of a motor vehicle causing death.

When serious charges have been laid, all but the most indigent will hire a criminal defense attorney to represent them. Michael Bryant was no exception; it was soon announced that he had retained Marie Henein, one of Toronto’s best criminal defense lawyers, with a well-deserved reputation as “a formidable opponent” who is “razor sharp” and “a lawyer’s lawyer.” Henein wasn’t Bryant’s only hire, however—the morning following Sheppard’s death, it was revealed that Bryant was being represented by the Toronto PR firm Navigator Ltd., which, among its other services, specializes in “CEO Reputation Building” and “Crisis Communications.” After being released on his own recognizance that morning, Bryant went before the cameras to offer his “deepest condolences” to Sheppard’s family, in a page straight out of the textbook of crisis management.

Immediately following this initial foray into rebuilding Bryant’s reputation, Navigator set to work disseminating Bryant’s spin on the incident. Bryant’s Facebook page received a makeover, with links to his press statement posted on his wall, and his candid profile photo replaced with an earnest, professional headshot. A blog and twitter account were set up “to quickly correct inaccuracies with factual responses,” with the posts reportedly focusing on responding to “what others have written and posted on twitter and youtube.”

This emphasis on spin control was not met without some criticism:

When a news story says, “We have new information from a source …” is that source Navigator? Or someone egged on by Navigator? We won’t know because Navigator “prefers to be inconspicuous.” Reporters talking to them have to agree that everything is off the record. Why?

Commenting on the ambiguous blurring between news and spin, one Toronto criminal lawyer said, “Look, the headline on this story should be: ‘Navigator, changing your perceptions without you even knowing it.’ ”

Responding to questions regarding his company’s work for Bryant, Navigator spokesperson Dan Robertson offered a defense: “From day one, there has been speculation, innuendo and rumor. It is perfectly fair to insist on accuracy, especially at a time when Mr. Bryant is not able to publicly tell his side of the story.” Ironically, Navigator could have been describing the man their client was charged with killing; if anybody in this incident was “not able to publicly tell his side of the story,” it was Sheppard, who now lay dead as speculation, innuendo and rumor about him replaced facts about the clash that led to his death. Within 48 hours of Sheppard’s death, the initial shock of the story would give way to a tidal wave of negative news stories about what was termed Sheppard’s “darker side”:

• On September 2, Toronto police announced that they were investigating whether Sheppard had grabbed the driver, or his wheel, “to confirm the accuracy of witness accounts that have suggested the cyclist may have been trying to get Bryant into a headlock and that the two may have been wrestling for control of the wheel.”

• In the same September 2 article, police reported that Sheppard had been involved in a dispute—described as “a noise complaint or a domestic dispute”—with his girlfriend earlier in the evening, and that “police intervention was required.” Sheppard was also reported to have consumed alcohol; one neighbor described him as being “drunk as a clunk,” while a fellow messenger said he “might have had one,” but “It didn’t constitute any unruly behavior.” On the scene, police decided to allow Sheppard to continue on his way, after concluding that, “he appeared to have been drinking but was not drunk and posed no threat to anyone.” Following his death, however, police announced that they were waiting for a toxicology report on Sheppard. They did not scrutinize the driver as carefully. Stating that “there was no reason to ask Bryant for a breathalyzer,” police reported that Bryant had not been drinking. The obvious next question—was the driver under the influence of other substances?—will forever remain an unknown.

• Also appearing on September 2 was a separate news article detailing Sheppard’s past run-ins with the law in his hometown of Edmonton; there were 56 counts against him, charging Sheppard with “possession of stolen property, fraud and uttering a forged document, all under $5,000.” The charges stemmed from allegations that Sheppard had stolen 17 checks from the Canadian Multicultural Society in 2002, made them payable to himself, and forged the signatures. He was released on bail in 2003, fled Edmonton, and never returned.

• September 3, descriptions of Sheppard as a man “admired by his co-workers for his charisma and adored by his family and friends for his comedy” were countered by complaints from neighbors, who said he “drank often and would have loud parties with his cyclist friends.”

• September 3, in an editorial with the giveaway title “Michael Bryant and self-Defence,” the Ottawa Citizen suggested that “investigators were too quick to charge Bryant,” proffering that “maybe it wasn’t ‘criminal negligence’ on Bryant’s part that caused the tragedy.” Dismissing the initial reports of a verbal argument between Bryant and Sheppard, the paper instead raised the specter of anonymous “reports that Sheppard tried to commandeer the vehicle, reaching in to grab the wheel and attacking the driver,” opining that “if this was, for all intents and purposes, a kind of car-jacking, then it’s hard to blame the driver for flooring it.” After implying that Bryant had been “terrified” by Sheppard, the paper again posited Bryant as the victim, noting that “In any event, Bryant will have his day in court and it is almost certain that self-defense will feature prominently.” The editorial concluded that “Bryant seems pretty certain that he is innocent of the accusations and, if true, he should be allowed to have his life back”—a conclusion that somehow missed the obvious irony that Sheppard would never have his life back.

• September 4, in another editorial, the Toronto Sun also proffered the suggestion that Bryant was the victim, rather than the aggressor, posing the question “Finally, ask yourself what you would have done if you were in a car with your spouse, with the top down, and someone was attacking you?”

So that was the spin. Why do I think it’s spin? Because details about Sheppard’s ancient run-ins with the law over stolen checks had nothing to do with what happened the night of his death. Neither did stories about noise complaints from neighbors, or his problems with alcohol. And perhaps most important, neither did invented “questions” about road-raging cyclists and terrified drivers. But they had everything to do with shaping public opinion, turning the public against Sheppard, and in support of Bryant. The story shifted from the factual “cyclist run down by road-raging driver” to the fanciful “terrified driver attempts to flee angry, drunken criminal.”

So to set the record straight, here’s what really happened.

The night of August 31, Darcy Allan Sheppard was on his bike on Bloor Street, riding home from his fiancee’s apartment. It was 9:45 p.m. As he approached a traffic light, he passed to the left of a Saab convertible that we now know was Michael Bryant’s. After passing Bryant, who was stopped at the light, Sheppard cut in front of his car and also came to a stop. Shortly thereafter, as the light turned green, Bryant drove forward, perhaps bumping Sheppard’s wheel. Sheppard turned his head back, in Bryant’s direction. Witnesses reported that when the light turned green, there was a toot of the horn from Bryant, and a shout to “get moving,” followed—perhaps—by a return shout from Sheppard. Then, incredibly, Bryant hit the gas, pushing Sheppard forward into the intersection, knocking him off his bike. As Sheppard struggled to get to his feet, Bryant backed up, stopped, turned his wheel and began to drive past Sheppard as he sped away.

Sheppard gave chase, grabbing onto Bryant’s car as it sped by. Witnesses reported hearing shouting, and noted that Bryant was “very, very angry.” They also reported that as Bryant sped down the street with Sheppard clinging to his car, he was driving on the wrong side of the street, at about 60 miles per hour, driving up onto the sidewalk, driving against the trees and posts and newspaper boxes lining the street in what they reported appeared to be an attempt to brush Sheppard off his car. Down the street 100 yards, Sheppard was slammed into a mail collection box, and crumpled into a heap in the street as Bryant’s rear wheels ran over him. Witnesses reported that Sheppard, who lay in the street bleeding heavily from his nose and mouth, attempted to get up, but was advised to remain still until an ambulance arrived. Bryant continued driving down the street to the end of the block, before turning in to the driveway of a luxury hotel, where he finally stopped his car.

This is not spin. It is not supposition. It is not rumor. It is fact. We know this, because remarkably, the incident was captured on security cameras, which corroborated the eyewitness accounts. Anonymous spin doctors can suggest news leads and story angles to divert media and public attention, and anonymous internet comments can invent fantasy versions of what actually happened, but the camera doesn’t lie.

And the camera shows that on the night of August 31, Michael Bryant used his car to ram Darcy Sheppard out of his way, before fleeing the scene as Sheppard gave chase on foot. Moments later, Darcy Allan Sheppard lay dying on a Toronto street as Michael Bryant sped away.

(Research and drafting provided by Rick Bernardi, J.D.)