Paper Tigers

When we wrote, in our McCann vs McCann Libel Trial post, that we were surprised by the evident, almost aggressive and insulting, weakness of the McCann team that showed up in Lisbon to ask over a million euros from Gonçalo Amaral (GA), TV station TVI (TVI) and publisher Guerra & Paz (GP), we weren’t aware then of any word uttered by these witnesses inside the court room.

So when we were trying to recover from this initial surprise we were astonished by the totally unexpected extreme frailty piled on top of the already perceived and abovementioned weakness.

We said then that this McCann team, unexpectedly captained by Kate McCann, seemed like sending Tiny Tim to be clobbered senseless by a heavyweight boxer.

What we certainly didn’t expect was for this “Tiny Tim” not to know enough of boxing to not know that the right-hand glove goes on the right hand and the left-hand on the left and not have "put" them on the other way around as he did.

And much less did we expect that once the bell rung for the "1st round", in that period in which the boxers start to dance, test and provoke each other, that this “Tiny Tim” would start clobbering himself without even giving a chance for his opponent to get in one first.

It was that bad for team McCann.

We’ll excuse ourselves from describing how many times we found ourselves to be dumbfounded as the information from the trial transpired, coming from a positively surprising source: the Anne Guedes’ transcriptions.

If we counted on the mainstream Media to tell us what had happened inside that court room on those 2 days, we would still be waiting today.

In that same post we also said that, looking at this self-impaired team, we could only see one of two reasons for it to have shown up in Lisbon.

One, was to have come to lose with minimal damages possible or the other, to have come just for a sightseeing tour as the decision to come out from inside that court room would already have been decided outside it.

As a first impression, we must say that at this point in time, we think the McCann team adopted the first hypothesis but quickly changed, by incompetence and self-infliction, to the second.

The events haven’t happened long enough ago for us to make, in our opinion, an adequate assessment of them, however it seems that the team was legally ill-advised by Isabel Duarte (ID).

They came to lose because their whole case was built around the assumption that GA would cave in sometime before things came to court.

He didn’t cave in. They then went for the next option: buy him out.

He didn’t want to hear any of it, so they were left with the only two options left: face him in court and lose or drop the charges and desert.

Desertion would really look bad. Really.

After offering, as the offended party, the man, as the offending party, a deal and seeing him refuse it and after that also seeing him also refuse any sort of settlement as ordered to be attempted by the court in January, to now drop the charges could only be seen as fear of facing GA and an assumption that whatever he has said is true, a silent declaration of guilt of whatever GA’s book says they have done.

So dropping the case, although physically an option, in fact wasn’t an option at all now.

You could say that there as a third option, to delay.

However, GA has publicly assumed an attitude that renders that option useless and after the above said double refusal, the last as direct consequence of a court order, a delay would only cause further damage because it would only be the temporary patching up of a wound that will bleed anyway and the longer it takes to treat only makes the infection worse.

So they were left with the only option: to take the loss.

To take the loss is indeed optional but to take it with minimal damages requires tactics and competence and that’s where we think ID ill-advised the Black Hats.

What was the give away? ID’s statement at the entrance of the court on Day 1 about all being about personality rights.

There had to be a reason for ID to show up in court alleging something completely different from what we been told were the offenses ministered by the offending party, GA, against the offended one, the 5 McCanns: that GA’s book has hampered the investigation in the search for a live Maddie.

It was the first time we heard about personality rights being an issue. As much novelty as bringing up the book profits, which has absolutely no relevance or connection with this case.

So what was ID doing? In our opinion, containment.

We believe that ID headed for that court room solely with one idea: containment.

Containment away from discussing facts.

Allow discussions around personality rights or around hampering investigation or around psychological damages to the twins or around the distress caused to parents or around the book’s profit or around the beauty of a sunset, or around etc…

Anything but to allow facts to be discussed. Anything but discussing the content of that book.

Basically ID wanted the sessions to go as the following imaginary dialogue between a teacher and a pupil:

Pupil: Johnny has bullied me. He’s a bully. I want you to put him in detention.

Teacher: What happened?

P: He made me cry.

T: Why?

P: I don’t want to say.

T: Did he hurt you? Where?

P: I don’t want to say.

T: Did he threaten you?

P: I don’t want to say.

T: Did he threaten any of your friends?

P: I don’t want to say.

T: What did he do?!?

P: He made me cry.

T: How?!?

P: I don’t want to say.

T: I can’t put Johnny in detention if you don’t give me a reason to put him there!

P: Oh… ok, fine.

The pupil would go home and the bully wouldn’t get detention. Johnny had tried and had simply been unsuccessful.

But here is where we say that ID has revealed, in our opinion, her incompetence and uselessness: absolutely blundering risk assessment and total absence of objectivity and focus.

Sure, she had Tony Bennett’s (TB) case as an example to follow. What, you ask?

You see, TB went to court and was sentenced for breaching an agreement. The court showed absolutely no interest in knowing, in fact, it refused to know, how, why and under what circumstances TB agreed to what he agreed.

With TB the court contained the hearings to whether TB had breached or not to what he had agreed to. He had so he was found guilty and sentenced.

Without that containment we very much doubt that TB would have been sentenced. Carter-Ruck, as we saw, showed themselves to be mere paper tigers.

No containment, no sentence.

And that’s the exact kind of containment we think ID is looking for.

However, in the teacher/pupil analogy, the one accused of bullying wasn’t present to defend himself and without his presence the desired containment was easily achieved which would be compleyely different with GA, TVI and GP as they would be, as they were, present in the court room and able, as they were, to cross-examine.

It also seems that ID is not exactly a follower of the lessons learned theory.

If memory doesn’t fail us, she also fought for containment in the book injunction case, trying her best to force the discussion to be only about whether the book should be published or not.

Was she able to contain the discussion then? No.

The result? The allegation, without specifying which to the best of our knowledge, of the existence of unfollowed leads that remain, as far as we know, unfollowed to this day and the pathetic and very uncomfortable declaration from Gerry about the McCanns being available to reopen the case.

So she had, in our opinion, a decision to make: on one hand, TB’s breaching case in London, where the discussion had been contained and on the other, herself in Lisbon during the book injunction case, where the discussion wasn’t contained.

Where was the trial going to be? In Lisbon.

Who was going to be the lawyer? She was.

Even so, proceeded to go to court. Either one very erroneous risk assessment or the sheer impossibility to back down.

If ID did assess the risk correctly, then the whole bungle up can only be attributed to the narcissistic arrogance of her clients but in that case we believe that Gerry McCann wouldn’t miss the opportunity to be the first in line to show us his smile.

About the impossibility to back down, do keep in mind that this only happened after they offered a deal to GA, which by the way, as proved, was another completely erroneous risk assessment made as the gentleman had already shown an integrity above any and all reproach.

Instead of offering that deal, the right option would have been to drop the case before doing that.

But it wasn’t so and by offering the said deal the Black Hats began a disastrous campaign without the possibility to back down. Without relevant and significant shame, at least.

That’s how they found themselves in court with a desperate and almost certainly impossible tactic to follow.

But was that the worst of it? Of course not.

We have just described the “Tiny Tim in a boxing ring” scenario and not the “Tiny Tim beating himself up in a boxing ring” one.

This is where the ID shows, in our opinion, an absolute lack of objectivity and focus.

Nowhere can we see any form of logic in ID’s line of questioning as per the Anne Guedes’transcriptions.

Do look at the transcripts. Can you see any objectivity or focus in ID’s questions?

Where were the expected angles of personality rights and book profits questioning?

We know that only 5 witnesses were questioned on the first 2 days, the only ones we have detailed information about as we’re writing, but from them we can extrapolate quite a lot.

Hubbard says “the people who saw the documentary believed a man who stated he said the truth” and to the question “Did they react badly to this extract?” she doesn’t know and she doesn't think they concluded anything from this paragraph.

Loach dives into fact, begging for it to be discussed by saying that she “thinks that the "nice, easy conclusion" explains the success of the book. There were many interviews and articles about the book, it was a kind of media tsunami. This upset and harmed more and more the McCanns. The documentary that claimed their daughter was dead and that they concealed the body created a lot of pain. It spread rapidly on the internet, with subtitles, millions of people watched it.”

Edgar confirms the looking for Maddie didn’t stop with the archiving dispatch by answering the question “Did the Polícia Judiciária (PJ) go on investigating after the case was filed?” with a clear yes and is asked “Did the interest of the public increase or decreased after the publication of the (Amaral) book?” when he only started working for the McCanns in October 2008, months after the book was published.

McBride to the question “Did you advise the McCanns about the reaction to the book?” says no and to the one “Have you read the book in a translation on the internet?” doesn't answer this question (note: later he will say he read the book without specifying where) but says he heard about the documentary and read a transcript of the documentary.

And we’re only talking about the accusation witnesses answering the accusation lawyer’s questions in Days 1 and 2.

From yesterday's witnesses, Day 3, we don't, naturally, yet have the trancriptions of what they said. We only have the information tweeted by Jerry Lawton, during the day and what some media reported at the end of the day.

But from what we know, the team's technique remains intact: walk in court on your own two feet and come out on stumps after shooting them away.

Alan Pike , who is not a qualified psychiatrist, has apparently come to court to show us all how unstable Kate is. A woman who, according to Pike, had suicidal tendencies because of Mr. Amaral's book being published.

This particular Kate's instability is well documented by herself in her own book: "I remember slumping on one of the dining chairs in the apartment, looking out through the window over the sea. I had an overwhelming urge to swim out across the ocean, as hard and as fast as I could; to swim and swim and swim until I was so far out and so exhausted I could just allow the water to pull me under and relieve me of this torment. I wasn’t keeping that desire to myself, either. I was shouting it out to anyone who happened to be in the room. Both this urge and the expression of it were, I suppose, an outlet for the crucifying anguish.
I also felt a compulsion to run up to the top of the Rocha Negra. Somehow, inflicting physical pain on myself seemed to be the only possible way of escaping my internal pain."

Unless she can sit in Rothley and look "out through the window over the sea" this passage refers clearly to a period in which Mr Amaral was still heading the investigation, so before writing his book and publishing it.

By the way, just out of curiosity, this passage is followed by one where she speaks about visions of a dead Maddie: "The other truly awful manifestation of what I was feeling was a macabre slideshow of vivid pictures in my brain that taunted me relentlessly. I was crying out that I could see Madeleine lying, cold and mottled, on a big grey stone slab."
 
To attribute Kate's alleged suicidal tendencies, which were adamantly denied publicly by Clarence Mitchell, in any way to Mr. Amaral is, to say the least, abusive.

Pike isn't qualified to assess suicidal state. He should have referred Kate to a psychiatrist if he is right in his opinion. She has never said she sought help for suicidal thoughts 

Pike's playing the emotional card to gather sympathy, simply backfired.

Then we have Alipio Ribeiro who walks in and apparently says he has nothing to say. He hasn't read the book or seen the documentary. So why was he summoned in the first place? Bizarre.

Witnesses are not called in by alphabetical or random order. First are the accusation witnesses, in the order established by the accusation lawyer or legal team, and then the defense ones, so it's logical to assume that Mr. Ribeiro must have been called in by ID. 

The almost cruel spectacle of watching “Tiny Tim” clobbering himself up.

These were ID's witnesses, she should know what she was going to ask and what were supposed to be the answers to her questions as well as to those from the defense lawyers.

The only ones that escape this masochistic show are Trickey from Day 2 and Claudia Nogueira of Day 3. Of the latter we can't provide an adequate opinion yet on what she has said as we lack the details.

Trickey does conclude as fact what the court is exactly deliberating upon, whether or not the book hindered the search, when he states “He is concerned that the twins will believe that the book hindered finding Madeleine”.

Trickey only expressed his opinion, and opinion, unless backed up by data, isn't valid.

There never was an empirical way to test the impact or lack of impact of the book. Even a psychiatrist saying the McCann’s were mental wrecks, it couldn't be linked to this book specifically.

Many other reasons, in which the book could be included or not, could be responsible for that mental affliction.

We don't have any other detail about Day 3 witness, PR expert Claudia Nogueira, other than she saying that 2.2 million people, half of TV viewing audience, watched TVI's documentary in Portugal.

We're yet to know how many people watched, in Portugal, the Mockumentary, and see explained to the court the reasons as to why they would believe the one and not the other, or why they couldn't make up their own minds on which version to believe in. 

Anyhow we will have to wait for the Anne Guedes transcripts of Day 3 witnesses, Alan Pike, Alipio Ribeiro and Claudia Nogueira, and see what they did say in court.

But back to ID’s questioning.

Where was the linearity of reason, the preparedness required on the part of the accusation? It seemed lost in a maze right from the start.

Any decent lawyer knows the answers required when asking questions. They never ask a question they don't know the answer or, at least, they may not know the exact answers they will get but they do, or should, ask questions to get the answers they want.

ID’s questions simply invited a don't know response, which isn’t exactly what one wants to hear from any witness much less from one that one has summoned.

She needed to prove GA's book was fiction or malicious first. If that isn't proved, then impact on McCann’s is irrelevant and indemonstrable.

They were there to lose but at least they should let the opponent do the job. Knowing that one is to lose beforehand does make one to be nonchalant about it... but there's a certain limit to that, isn't there?

From where we stand, ID has revealed herself this far as much a paper tiger as Carter-Ruck in TB’s breaching trial.

And when it came the time for the opponent to hit, it seemed that “Tiny Tim” took a dive… literally head first directly and intentionally into the adversary’s fists, even if he tried to hide them behind his back!

No wonder that the first we thing we heard from ID after having knowledge of the court "recess" due to the judge's personal problems was that she it was proposed to the court that witnesses submit written statements, to avoid the inconvenience of travelling all the way from UK and then finding out the judge has personal problems.

First of all, the said request infers that judges having personal problems and interrupting court sessions are a common and recurring occurrences in Portuguese courts. 

Second, even if that absurdity was the case, hasn't anyone heard of testimonies via video-conference?

Written satements besides assuring that witnesses can't be cross-examined, would allow the lot to get their act together, something they seemed to incapable of achieving inside the court room.

About the defense teams, we do think that the opponents did try to "hide their fists behind their backs" by leaving the witnesses statements to stand without poking around for explanations.

This way, in the summing up they just have to repeat what witnesses said, leaving them no opportunity to backtrack.

We’ve seen some comments asking why lawyers didn't give witnesses a harder time, but they didn't need to. To a question like "Did you punch the victim?" the answer of "Yes", is pretty much sufficient.

All this resulted in a spectacle so cringingly poor that although we have no reason to believe that the judge may have been linked in any way to the hypothesis 2 (the game being played outside the court room), we wouldn't put it past us, although speculating with a very reasonable amount of logic, that those extra 15 minutes that were asked in the beginning of that never to happen afternoon session, were simply to continue the ongoing efforts started much earlier to find the right person to call and tell her that she had a problem, a personal one.

A time-out to give ID and her team some time to get their act together. But as we said, this is pure speculation.

One note about the mainstream Media. We really thought that the judge allowed the media in the court room. By the silence and lack of news, it seems that the media weren't informed of this decision...

A decision through which the judge, unwittingly, made the media show their real face when it comes to this issue.

They could be there to report but didn’t and aren’t. Why?

The media seems to think that a more than a million euro libel case involving one of the mediatic events of the XXI Century is not sufficiently newsworthy.

It seems that libel cases of more than a million euro involving citizens of two countries are just another one of those common and recurring occurrences in Portuguese courts, so not that much of interest to the general public.

Last week, on Thursday 12th, the media gave a sign of life as of late morning, led by Martin Brunt and his Sky News. The rest of the press soon followed as if they were waiting for a sign of permission  to be able to report the matter.

The issue made the evening news that day.

But on the next day, Friday 13th, it seems that the court "recess" was extended to the media. As of that day afternoon we have had no more news.

Yesterday, not even Martin Brunt and his Sky News, the day the trial was supposed to have resumed.

Today, unsurpsrisingly, we have at least 2 UK newspapers inaccurate headline news saying Kate was suicidal and even talking about a car crash which we haven't the faintest idea about.

Saying that Mr Amaral accused them of disposing of Maddie following a car crash. That just describes the trial itself.

Final note, as it had to be, is about David Edgar, the star of the Mockumentary, in which there’s the following dialogue:

DE: “..if we had found that Kate and Gerry were involved we would hand over to the authorities”
Reporter: “Did you find anything?” 
DE: “No… (silence) ...nothing… (prolonged silence) ...not a shred of evidence that they were involved.”

Now we know why:

“Guerra & Paz – Did you have access to the criminal process? 
David Edgar answers that he read parts of the files in the translation that the McCanns asked to be done.”