Black Mom gets White Justice

Dennis “Rocka” Knibbs was a black defendant facing a white jury – ten jurors were white and two were of Asian ancestry – in his murder trial in Vancouver. When this fact was mentioned early in the trial on the Downtown Eastside Enquirer blog, it drew a response from Lanre Aba Habib, mother of 21 yr. old Trumaine “Ekoh” Habib whom Knibbs, now 31, was accused of shooting multiple times in the New Wings Hotel. Habib wrote: “And as my son was half white, all I ask the court is that they would give his white side some form of JUSTICE”.

She got justice.

But questions linger about whether justice was stretched a little thin in places during the trial which saw Knibbs, the Montreal born son of Jamaican immigrants, convicted of second degree murder and sentenced last Thursday to 25 years in prison, with a mandatory ten years before being eligible for parole. Defense lawyer, Glen Orris, had argued in the hours before the verdict that Knibbs was being denied his right to fully defend himself.

Orris had felt ambushed when the jury was told at the last minute that they could consider whether the victim, Habib, had acted in self-defense when firing the first shot. Orris said he would have defended his client from this angle had he learned of it before the jury was heading off to deliberations.

“Who goes into a hotel they were just banned from toting a SHOTGUN?!!…he intended to what? Use it as a coat hanger?”

Even laypersons discussing this murder case instinctively gravitate toward the issue of whether Habib was defending himself or provoking Knibbs when he fired that first shot. Early in the case, Habib’s mother wrote to the Enquirer,

“…all I want to say is that my son was defendeding (sic) himself from two thugs that had nothing but bad blood towards him and he defended himself as he knew how to…”

After the verdict, a Knibbs supporter who wished to remain anonymous, argued that Habib’s conduct was more provocation than self defense:

“Who goes into a hotel they were just banned from toting a SHOTGUN?!! … Its obvious why this guy went back with a deadly weapon.. to use deadly force. I'm sure if he took it, he intended to what? use it as a coat hanger?”

The fact that the victim, Habib, had brought a shot gun to the New Wings Hotel in the hours before the shooting is a fact that was agreed upon by both the prosecution and the defense in this trial. Leroy Charlie, a 19 yr. old New Wings resident, had allowed Habib to stay in his room and later testified that Habib had walked in, pulled a shotgun out of his pants, and showed it to him.

Other facts too were agreed upon by both sides: Later in the day on which Habib had brought the shotgun into the hotel, Liscombe and Knibbs had been looking for Habib; Liscombe pushed on the door of Charlie’s room and as the door opened partially and then slammed shut again, Knibbs joined Liscombe in pushing on it – that’s when Habib fired the first shot from his shotgun. That first and only shot fired by Habib hit Liscombe in the gut, a wound from which he would die a few hours later in St. Paul’s hospital. A few days before Habib brought the shotgun into the hotel, he and Liscombe had gotten into a fist fight in the hallway of the hotel and Habib, the smaller of the two, had grabbed a baseball bat and whacked Liscombe across the head, leaving a cut that required a hospital visit and stitches. After that fight, Habib had been barred from the hotel by the manager but had returned to Charlie’s room with a concealed shotgun and an intent, he told Charlie, to “lay low” for awhile.

In closing statements, prosecutor Michael Luchencko told the jury that it was likely that Habib had brought the shotgun into the hotel simply because of the nature of the business he was in – Habib, Knibbs, and Liscombe were drug trafficking in the New Wings -- and not specifically to harm Liscombe or Knibbs.

Judge Silverman instructs the jury: first he says they could, then he says they couldn’t, then he says they could

After the verdict, a supporter of Knibbs commenting on the Downtown Eastside Enquirer blog, accused the jury of letting race influence their decision.

"Let me ask the jury this , 'How could you say that Ecko acted on self defense if he was barred from the New Wings . Means he isnt allowed in . How do you know defendent (sic) wasn't tryin to escort him out of there'. . . . You have it out for black people and I really think that it's a nasty attitude."

But if the jury's decision was colored by anything, it may have been Justice Silverman's instructions about whether they could consider if Habib had acted in self-defense when firing the first shot. First he said they could, then he said they couldn’t, then he said they could.

Trouble started when Justice Silverman, before sending the jury out to deliberate, instructed them that they could consider the issue of whether Habib had been acting in self-defense. The minute the jury left the room, Orris stood up and objected, telling the judge that it was unfair to put this issue to jurors for the first time as they were heading out to deliberate. Orris argued that the prosecution had not raised this issue during the trial, denying Knibbs an opportunity to defend himself in relation to it.

Orris -- who had told the jury the day before in closing statements that this case “screams out” for an acquittal based on the fact that Knibbs had been the one acting in self defense – now gave the judge an idea of how he would have defended his client if he had known that the jury would be asked to consider whether Habib had been acting in self-defense. Orris said he would have gotten the jury to distinguish between whether it was Knibbs or Liscombe that Habib may have felt the need to defend against.

Orris won over the judge. Justice Silverman recalled the jury and gave them strict instructions not to consider whether Habib had been acting in self-defense: “Take that off your radar.”

The jury didn’t take it off their radar. The next day, after deliberating until almost dinner time, the jury sent the judge questions. They asked: “When Liscombe and Nabib forced entry, did Nabib have the right to fire the shotgun? Was that an unlawful act?” And they asked for a brush-up on the “provocation” defense, specifically the part that states that some “unlawful act” must have suddenly been committed to provoke a person into committing murder. Even Orris’ receptionist smelled trouble here; she had dropped into the courtroom with an armful of papers and said in worried tone, “They’re talking about provocation.” Orris, a 30 year veteran of court rooms, responded, "Who knows why." He did not sound happy.

Even a layperson sitting in the gallery could see that the jury’s questions hinted at trouble for Knibbs. The jury appearing to be reviewing the defense of “provocation”, a place where the judge told them to go only if they had already found Knibbs guilty of murder. The provocation defense would allow the jury to drop a murder conviction down to the lesser conviction manslaughter. The provocation defense works like this: If Habib’s firing of the shotgun into Liscombe’s belly could be viewed as an unlawful act that had “provoked” Knibbs into a violent response, then Knibbs could be convicted on the lesser crime of manslaughter and be out on parole in 4 years. But if Habib had a right to fire that shotgun – i.e. if he had been exercising his right to self-defense -- he was not committing an unlawful act and the jury’s option of dropping a murder conviction to manslaughter was dead.

Orris put up a fight. It was getting late, about 8:30 p.m.; the lights were out in the halls of the cavernous court building, the sheriffs were on overtime, and the Canucks were in overtime a few blocks away, playing what would be their final playoff game.

Orris argued to the judge that prosecutors had “never taken the position in opening or closing statements that Habib was acting in self-defense in acquiring the gun.” And there had been “no suggestion” by the prosecution during the trial that Habib had acted in self-defense. Orris further pointed out that raising this issue was unfairly “putting the onus on Mr. Knibbs to prove that Mr. Habib was not acting in self-defense”. It was too late for Knibbs to mount a defense now, Orris said.

“I didn’t get a chance to say to this jury,” Orris argued, “‘Nobody saw guns in the hands of either of these men’”, either Knibbs or Liscombe, as they entered the room where Habib was staying. And Knibbs took out a baton only after Habib fired the first shot. And Knibbs had intervened in a fight a few days earlier between Liscombe and Habib, punching Habib once, just enough to put an end to the fight. “So what are the chances he wanted to blow this guy away from 30 centimeters with a shotgun?,” Orris told the judge. “I didn’t get a chance to argue that. Don’t go there.”

The judge went there. Justice Silverman told Orris that he intended to rule against him. He intended, he said, to instruct the jury to use a “common sense” standard for whether Habib had been acting in self-defense. Orris protested: You’re going to say to the jury that the criteria for self-defense that you instructed them to apply to Mr. Knibbs, don’t apply to Mr. Habib, and that for Habib the standard to be applied is “common sense which is much wider”.

“Give me ten minutes”, the judge said, as he ducked out to prepare the tricky wording of his instructions to the jury. Orris turned to a sheriff: How are the Canucks doing?

Justice Silverman recalled the jury and instructed them to decide whether Habib had a “perceived need to defend himself” – that’s the key phrase to remember, he told them -- when he fired that first shot. In a general sense, the judge explained, “a person has a legal right to defend himself from danger or threat of danger.” You will have to be satisfied that Habib did have that “need”, before you can decide that he had the “right” to fire the first shot. “There are clearly some common sense limitations that you’re going to have to consider”, he further explained. You will have to determine that:

1. Mr. Habib “honestly and reasonably perceived serious danger and threat to himself”,
2. Mr. Habib fired the shotgun “in response” to the perceived danger,
3. Mr. Habib’s “reaction in firing the shotgun was not excessive” in those circumstances.

The judge emphasized, "Apply common sense."

Common sense was exactly the standard that Habib’s mother wanted applied in this case. In a comment left at the Downtown Eastside Enquirer near the start of the trial, the Surrey mother referred to the judge’s opening comments, “COMMON SENCE (sic) IS WHAT THE JUDGE KEPT SAYING TO THE JURY I TRULY HOPE THAT HE USES SOME."

Anyone with an ounce of common sense can see that this case isn’t over yet. As Knibbs sat in the prisoner’s box for the first time after the verdict was read, his tie now missing, a tall, young, Mulatto guy who had arrived with his Asian girlfriend, spoke with him through the glass. He encouraged Knibbs to hold out hope for his appeal. “Now three judges get to deal with it,” his pal reminded him. "And when they see what’s up, they’ll see what’s up.”

Will Heather be your pick?

I thought the Wilderness Committee was about saving trees, not cutting down Israel.

But it was on the Wilderness Committee website that I saw an announcement* for Saturday’s launching of a boycott of Chapters-Indigo books. On the Wilderness Committee website, space was turned over to boycott organizers to remind readers that Israel-supporters Heather Reisman and her husband Gerry Schwartz are the primary owners of this bookstore chain. And to warn customers that this couple is up to no good.

“A bookstore that kills?”, was the message scrawled on a piece of beige cardboard held by a twenty-something woman standing by the front door of Chapters in downtown Vancouver yesterday. She was one of 10 people standing in front of the Robson St. store, the one in the new building designed to look like it’s toppling over, the one where you can buy a book or a Starbucks coffee. The protesters stood holding placards or handing out leaflets or asking customers to think twice before buying a book that would put money into the pocket of Heather Reisman. At the bottom of the placard was the web address: www. newsocialist

A man in his early twenties with short brown hair stepped toward me and said politely, “Would you like a flyer?” “Boycott Chapters-Indigo?” he continued as he handed me a white and black flyer. He had a spiel and he said it all in one big mouthful: “We’re boycotting Chapters for their support of Israeli apartheid and Israeli war crimes against Palestinians and their support of the Israeli defense force. So we’re boycotting Chapters because of their funding and their support for that.”

Heather Reisman, being not a new socialist but a smart capitalist, saw these people coming. She tried to sell a book to customers whose attention they were turning to Middle Eastern issues. She put “Heather’s Picks” on prominent display just inside the door of the store. Heather’s Pick: “Infidel” by Ayaan Hirsi Ali, “a great book personally chosen and loved by Indigo CEO Heather Reisman – 20% off, members save 10% more." Heather 's Pick: "In the name of Honor", by Mukhtar Mai. Both Ali and Mai speak out about the pernicious abuse of women by Islamists, the Islamists with whom the leftists on the sidewalk out front had aligned themselves. Heather was making a buck and making a point.

Heather is facing a boycott that is well organized though. There was a long, professionally printed, dark blue and white banner about 10 feet long, with protesters taking turns standing at each end holding it up.

Chapters - Indigo - Israeli Military: Partners in Apartheid

In Victoria “bi-weekly actions” are being held at Chapters on Saturdays. And there is a Canada-wide “day of action” planned for June.

In the black and white flyer – there was a second flyer too, a coloured one – the boycotters went into more detail about what Heather had done to motivate them to spend a Saturday afternoon working the sidewalk crowd:

Heather Reisman and Gerry Schwartz – majority owners of Chapters and Indigo bookstores – are the founders of the ‘Heseg Foundation for Lone Soldiers’, which provides scholarships and other financial support to soldiers in the Israeli Military on the basis of need and military ‘achievement’. At its peak, the foundation will distribute up to $3,000,000 annually to former ‘Lone Soldiers….

Former lone soldiers. The brochure was contradicting the message scrawled on the young woman’s killer bookstore placard: “Up to 3 million a year given to Israeli’s oppressive military.” That sounded like current military personnel, not former.

Accuracy, say critics, is not a strong point of those protesting against support for Israel. That’s why there are Chapters customers who will not stop shopping there for books. Their attitude is closer to, ‘Shop ‘til you drop.’

One critic of the protesters in front of Chapters is Dag Walker, a founder of the Vancouver chapter of the Blue Revolution, a movement which is big in France and budding in Canada and other countries. Blue Revolutionaries take the attitude that the world is better off with Israel and the U.S. and that western leftists aligning themselves with Middle Eastern Islamists are misguided. The Blue Revolution in Vancouver is, like the boycotters who showed up at Chapters, a small but committed group. And like the boycotters, they welcome anyone whose thinking is similar to theirs on this issue; in fact, they wear blue scarves at their public meetings so that they can be easily spotted by newcomers. They’ve been meeting every Thursday evening for the past year and a half at the Vancouver Public Library, rain or shine – mostly rain – in front of the Blenz coffee shop in the lobby.

I know Dag Walker but I’m not involved with the Blue Revolutionaries. I did know that they were pro-Israel; it was the black cap with the small Israeli flag on the front that I saw Walker wearing on his way to one of their meetings that first tipped me off. So I asked Walker how the Blue Revolutionaries would view the group who launched the Chapters-Indigo boycott yesterday. “We call these people Death Hippies,” he told me. “If they protest against Chapters supporting Israel, we’ll protest against them supporting terrorism.”

In fact, there is talk amongst the Blue Revolutionaries of changing the location of a future meeting -- to the Starbucks coffee shop inside Chapters, in the building that appears to be toppling over. They want to make a point, a point similar to the one made with Heather’s Picks.

Clearly, there is more than one perspective on the support for Israel by Chapters-Indigo owners Gerry Schwartz and Heather Reisman. The next time you’re shopping for a book, you can either buy from Heather or boycott her. It’s your pick.

* Since this story was published, the Wilderness Committee has 'disappeared' the announcement for the Chapters boycott from their May calendar -- although they left every other past entry intact on their calendar. The DTES Enquirer had made a copy, though, of the full page of material that the Wilderness Committee ran at their site to encourage people to attend this boycott.

Pedestrian struck near Main & Hastings

I was walking home about 20 minutes ago and there were alot of sirens at Main & Hastings. I asked a guy what had happened and he said a pedestrian had been hit. So we walked up Hastings, to just east of the Empress Hotel -- I can take that route home -- and in the middle of the street there was a pedestrian lying there. There were lots of cops and firemen and an ambulance. There were witnesses standing with the cops too.

As we stood there on the sidewalk, a photographer jumped in between the police cars surrounding the body. As he snapped photo after photo of the paramedics working on the body, he seemed almost gleeful. Why do I think that was blueshoe?

"Mr. Black" gets ten

Before Dennis Knibbs was sentenced for second degree murder this morning, his lawyer Glen Orris told the judge that he had been involved in such events as Black History Month and had been named "Mr. Black" as an "award in 2004 in Vancouver". Later in the morning, Judge Arne Silverman told the packed courtroom that Knibbs' past involvement "in a positive way with the Black community and Black community activities" was being taken into account in the sentencing.

Knibbs sat in the glass prisoner's box wearing a bright red, long sleeved t-shirt, his head slightly bowed, He did not seem to notice when Orris got his age wrong, telling the judge he was 41 instead of 31 years old. And he did not turn to look when his supporters streamed in a little late, or when one of his male supporters verbally harassed the victim's mother.

Knibbs has family support

Orris told the judge that Dennis Knibbs had been born in Montreal to parents originally from Jamaica. Knibbs' mother and father are separated but his mother remains in Montreal, along with other members of his immediate family, "all gainfully employed". "His mother was here at the start of the trial," Orris added, but she had to return to her job in Montreal. While out on bail awaiting his murder trial, Knibbs worked in a cousin's restaurant on Commercial Drive. Judge Silverman would later mention that Knibbs had "good family support".

Knibbs has two sons from a previous relationship -- one was mentioned as being eight years old -- whom he "sees regularly" and helps support "when he can."

Knibbs, the judge would later add, "left school" after grade 11.

Knibbs' criminal record before murder: the bad and the good

Before sentencing, the judge reviewed Knibbs' criminal record, a record he noted the jury had not been aware of when recommending that he serve the minimum of 10 years before being eligible to apply for parole. Knibbs' record conveyed messages, both good and bad. Knibbs had a "minor" conviction in 1995 for possession of a narcotic and received a $75 fine. Knibbs had three convictions for "trafficking in a narcotic" in 1996 and was "sentenced to 28 months for each of those three to be served at the same time." Knibbs' latest offense of murder had occurred in a drug trafficking context. Bad. Between 1996 and his arrest for murder in 2005, Knibbs had no convictions. He had, the judge said, "been free and clear" for almost a decade. Good.

Harassing the victim's mother

Like Knibbs, Trumaine Abraham "Ekoh" Nabib, also has family. His mother Lanre Aba Nabib, a slim, youthful -- her son was 21 yrs. old when he was shot two years ago -- Black woman, with very short curly hair, showed up for the sentencing. On this sunny but nippy spring day in Vancouver, she wore a soft, wool, beige and black sweater, an off-white skirt, and a long light green blazer. She sat quietly in the front row.

But one of Knibbs's supporters would soon get to her. He was a tall, twenty-something Mulatto man, who had filed in late with a group of young people and sat behind her. He wore a new black t-shirt with a large red heart depicted on the back, a heart with 8 small round holes in it and long drips of what looked like blood coming from it, and a small crack breaking it apart from the top. After sitting down, the man seemed to recognize the victim's mother. From his seat behind and two seats to the left of her, he gazed at her for a prolonged period; it was not a hostile gaze. But he reacted with disdain when the judge turned to a Victim's Impact Statement she had submitted on behalf of herself and her other children.

The young man reacted instantly as the judge noted that in the Statement in front of him, Habib's mother was "speaking in a positive way" about her son, noting that he had entered the world of drugs "only recently". The young man looked her way and began making remarks, making it difficult for people in the vicinity to hear the judge reading the Victim's Impact Statement. The victim's mother turned around and responded to the young man. He shot back, and the two exchanged comments for a few seconds, in low but unfriendly tones. Finally, Lanre Habib said, in a low, terse tone, "Shut up", and turned back around. He did shut up. But by that time the Statement was over. The sheriffs hadn't noticed. Knibbs hadn't noticed.

Neither the victim's mother or Knibbs' supporters are prone to such exchanges in court. Lanre Habib has sat quietly during previous appearances in court. (She introduced herself to me, the blogger, during a court break and was polite, saying that she was pleased to have met me. She has never attempted to influence coverage of the case.) Knibbs' supporters are young and sometimes whisper too much when court is in session, but they haven't come looking for trouble. One of Knibbs' male friends with long corn rows was clearly angry in the minutes after the verdict last Saturday, but waited until he got into the hallway to express his anger about "lies and rumours".

The judge has the power to change just one number
The judge explained to the packed courtroom, which he observed included "well dressed young people from a school", what a second degree murder conviction means. It automatically means "life in prison" with a 25 year sentence, and a requirement that a minimum of 10 years be served in prison before eligibility for parole. The judge added that most of this punishment is out of his control -- except for one number. He can top up the minimum 10 year period Knibbs must serve in prison before he is eligible to apply for parole. Prosecutor, Michael Luchencko, asked him to do that, to jack up the minimum sentence to anywhere from 10-13 years.

Judge Silverman explained to members of the public in the court room that when Knibbs becomes eligible for parole, it "doesn't mean he gets out; it just means he gets to apply."

What worked in Knibbs' favour during sentencing

In deciding whether to top up the 10 year minimum, Judge Silverman listed facts that he was considering in Knibbs' favour:

In the days leading up to the deaths of Habib and Liscombe, the judge said, Knibbs had intervened in an "altercation" between the two. Knibbs had given Habib "one punch" and "ended the altercation".

In the minutes before the murders, Knibbs and his cousin had questioned an associate of Habib's, then escorted him out of the building. He was "not assaulted or anything", the judge noted.

One thing that the judge found to be "most favourable" to the accused was that the victim had fired the first shot. Then events "unfolded quickly", over five to six seconds. The judge noted that this murder was not even close to first degree; it lacked planning or deliberation: "It was reaction."

Another factor that the judge said he considered "significant" was "the fact that the victim brought the shotgun to the scene." "Habib acquired the shot gun on an instantaneous basis", the judge said. He noted that a witness, 19 yr. Leroy Charlie, had testified that Habib entered his room on the afternoon of the shootings and pulled a sawed off shotgun out from under his trench coat. "It is possible that if Mr. Habib had not have brought the shotgun, Mr. Knibbs would not have shot him."

What worked against Knibbs during sentencing
Judge Silverman said he is convinced that Knibbs did not plan to go to Habib's room to kill him, but he and his cousin "were certainly going to confront him". After Habib fired the first shot, though, Knibbs had a "quick reaction that came with an intent to kill or to cause bodily harm" severe enough to result in death. "There is no question in my mind", the judge said.

What is very clear from the verdict," Judge Silverman said, "is that Mr. Knibbs was not acting in self defense and he was not provoked in the sense that the law means that word." Silverman continued, "When Mr. Knibbs shot Mr. Habib, Mr. Habib no longer presented a threat of violence to Mr. Knibbs...he had been disarmed or his weapon was no longer working and Mr. Knibbs knew it."

Judge listens to the jury

After Saturday's verdict, the judge told the jury that if they recommended a minimum sentence, he would definitely take it into consideration. He said he would listen to them. And he did. He ruled that Knibbs will be eligible to apply for parole in ten years.

The judge told Knibbs, that he is "barred for life from possession of a firearm." Knibbs must also provide a DNA sample.

The trial: the last business of your child's life

Writer Dominick Dunne, whose young adult daughter was murdered, once said he thought it was important for the parents of a murder victim to make appearances at the trial: "The trial is the last business of your child's life."

I saw Ekoh Habib's mother a few minutes after the sentencing, when I came out of Tim Horton's with a take-out coffee in my hand. She was sauntering along in her green blazer in the spring sun, looking down at the sidewalk.

Guilty! Murder 2

Some tough Canadian justice was served up today to a 31 yr. old Vancouver man, born in Montreal to parents who had come here from Jamaica. The jury gave Dennis Knibbs, on trial for murdering Trumaine "Ekoh" Nabib, 21, in the New Wings Hotel on Apr. 4, 2005, the maximum allowable: second degree murder. They rejected the option of manslaughter, although questions they sent back to the judge and lawyers suggest they grappled with it.

Knibbs will get an automatic 25 year sentence. He will have to serve a minimum of 10 years before he is eligible for parole.

Judge Silverman asked the jury of 8 women and four men, all White, except for two women of Japanese descent, to decide whether they would like to make a sentencing recommendation. They had the right, he explained, to recommend that Knibbs be required to serve more than ten years before being eligible for parole. The judge assured them that he would definitely take their recommendation into consideration. They wanted to go for lunch first. But they returned to the court room in mid-afternoon to recommend that Knibbs be eligible for parole after 10 years.

Knibbs remained stoic as the verdict was read. His lawyer, Glen Orris, who had in the moments before the verdict sat beside him and put his hand on the arm of Knibbs' chair, spoke softly to him now.

Knibbs made a cell phone call and then handed the phone to one of his male friends in the gallery.

A twenty-something Black woman who had accompanied Knibbs to court on the first day and regularly since, sobbed when the verdict was read -- Canadian style though, she didn't make a scene. Outside the courtroom, near the washroom which she had found locked on a Saturday, a young Black woman held her and she sobbed, louder.

Knibbs allowed the sheriffs to take him out to jail, no fuss. As he left, he turned to his male buddies who were sitting quietly, and with hand to forehead gave them a good-bye salute.

Ekoh Habib's family was not present for the verdict, although his mother has made appearances at the trial.

Judge Sentences Garbles

There’s a Shania Twain song, “What made you say that?” It could have been the theme song of Judge Silverman's closing instructions to the jury in the Dennis Knibbs murder trial. Silverman later recalled the jury, telling them that there were several “mistakes or slips of the tongue that I have made and will attempt to correct.”

There was room for mistakes though. There was built-in redundancy in his instructions which lasted four hours (that’s after 2 hrs. worth of lunch and coffee breaks are subtracted). He kept circling back to key points that the jury would have to remember in the jury room.

The defense of “self-defense”: If it fits, you must acquit

Judge Silverman told the jury that in determining whether Knibbs was guilty of murder, they had to consider the defense of “self-defense”. If it fits, you must acquit. That the gist of his message.

In explaining self-defense, the judge told the jury that the law allows Knibbs to defend himself, or someone under his protection, from assault as long as he doesn’t use excessive force. Was Knibbs’ cousin Ian Liscombe under his protection? Knibbs had just watched Liscombe shot in the abdomen by Ekoh Habib who Knibbs is accused of then shooting.

First mistake:

Towards the end of his instructions, Judge Silverman had told the jury that they could consider not only whether Knibbs had been acting in self-defense but whether Ekoh Habib had been acting in self-defense when he fired the first shot. Both the defense and the prosecution agree that Habib fired the first shot after Liscombe was attempting, first alone and then with Knibbs’ help, to push open the door of the room in the New Wings Hotel where he was staying

The judge’s instruction to the jury, Orris argued, “gets into the question of whether Mr. Habib was the one acting in self defense from Mr. Knibbs or Ian [Liscombe] and this was not something that the law required they consider. “I better tell them not to pursue that analysis” said Silverman. And he did tell the jury just that.” “Whether or not Habib was acting is self-defense: take that off your radar.”

Recipe for murder

The judge explained to the jury that there are “five ingredients” in murder. The prosecution has to prove to you that all five ingredients are present, or they haven’t made their case that Knibbs is a murderer. You have to be convinced beyond a reasonable doubt that the prosecution has given all five of the following ingredients, or the prosecution hasn’t made their case for murder.

1. identity of Mr. Knibbs as the offender, the “shooter” of one of the guns.
2. time and place of the events
3. Mr. Knibbs committed an unlawful act
4. An unlawful act caused the death of Mr. Habib. “Certainly the shotgun caused his death”, the judge added.
5. Knibbs either meant to cause the death of Mr. Habib or meant to cause bodily harm that Mr. Knibbs knew would cause death and was reckless about whether it caused death.

If all five ingredients are present – you mustn’t have doubts about even one – you can consider Knibbs a murderer.

But it ain’t over ‘til it’s over. Even if you conclude that you have all five ingredients that make Mr. Knibbs a murderer, Judge Silverman told the jury, you can knock his conviction down from murder to manslaughter – if you are convinced he was provoked by Mr. Habib.

Two more mistakes:

As the judge repeated his instructions to the jury, he told them that if you have a doubt about whether you have even one of the five ingredients for murder in the case of Knibbs, “you will find him guilty on both counts”, murder and manslaughter. Ooops! He should have said “not-guilty”, he told the jury after Orris brought it to his attention.

Judge Silverman also told the jury that if you find beyond a reasonable doubt that the first four ingredients are present but not the fifth, “go on to manslaughter”. “Not correct,” Silverman admitted, when Orris drew it to his attention. If you have a reasonable doubt on ingredient 1,2,3, or 4, Silverman explained, “the result is not guilty on both counts.”

Defense lawyer couldn’t believe his ears

When Orris first pointed out one of the mistakes to Judge Silverman, he indicated that he didn’t quite believe his own ears. He told the judge that he thought he might have heard it wrong. Orris was listening to Silverman explain to the jury that Crown prosecutors had to have convinced them that they had the five ingredients in this case before they could find Knibbs guilty of murder.

Fourth mistake:

The first of the five ingredients is of course, Judge Silverman told the jury, that you have to know the “identity” of the shooter. “I don’t think you’ll have much trouble finding that”, he noted. Did Orris hear that correctly? The judge checked the transcript and confirmed that he had in fact said, “You’re not going to have any trouble determining the identity of the shooter.” I can’t believe I said that, Silverman said, as Knibbs watched. “I’ll correct that.”

A few minutes later, Silverman told the jury, “This one was a straight slip of the tongue” and a “serious one.” He said emphatically, “If I said that, I’m pulling that back.”

It was the drugs talking

Judge Silverman would no doubt be the first to admit that he’s not perfect. He’s the judge who reminded the jury twice that experts are "not deities" . They can make mistakes, he cautioned.

At least Judge Silverman was non-defensive when his inconsistent statements were brought to his attention -- unlike witness after witness in this case who excused their own inconsistent statements by saying, ‘Don’t blame me; it was the drugs talking’.