Dear Readers,
Here are Parts 3 and 4 of Who’s lying?, a special double edition. Expect new installments of both this series and The Trial of Serial’s Adnan Syed in the coming days and weeks. If you missed the first installments you can catch up here:
Who’s lying? Part 3
I first met Feng Li on July 2, 2015 in the almost-empty halls of Toronto’s superior courthouse where he was chatting to the trial interpreter. I was there to pick up documents related to another case and, as is my habit, I scanned the dockets to see if anything interesting was going on. When I spotted a sexual assault trial, I decided to check it out. I introduced myself to Li and the interpreter and asked if they knew anything about the trial that was underway. Li said the case was not very interesting and was about to wrap up. Later, when it became apparent that I planned on attending the closing arguments of Li’s two-day trial, he admitted rather sheepishly that he was the defendant.
Inside the courtroom, Li takes his place in the witness box where he still has a few more questions to go in his cross-examination. He is wearing a tight-fitting, deep blue pinstriped suit with a light blue tie and maroon pocket handkerchief. Had I arrived earlier I would have heard the prosecutor Daniel Brandes grill him on the suit’s provenance (custom made in Hong Kong) and its cost (several hundred dollars.) All this I will later discover when I listen to the complete audio recordings of the trial.
Li did not have to take the stand. The accused has the right not to testify and run the risk of incriminating himself. Putting Li on the stand was a strategic choice to create as much reasonable doubt as possible. From what I see, very briefly, and later hear, in full, of Li’s testimony, he is a strong witness who does not get flustered despite the aggressive cross-examination by the crown.
In fact, Brandes does to Li, many of the things defence lawyers are often criticized for doing to sexual assault victims. Along with grilling Li about his taste in clothes, he also calls on him to explain how he came to own five properties. Li says that income from each one helped pay for the next. He’s cagey, however, about admitting that his parents sent him the down-payment for his first home.
At one point, Brandes shows Li a picture of a young woman who he believes to be his girlfriend. The implication seems to be that she’s nowhere near as attractive as Meredith, who’s way out of Li’s league, but that line of questioning gets derailed when Li says, no, it’s not his girlfriend.
In her brief closing arguments, White portrays Meredith, who is not in the courtroom, as sly and manipulative, not to be trusted. “The complainant’s testimony was full of inconsistencies and self-serving statements, and is not worthy of belief,” she says pointing out that Meredith was often quick to answer in English, but at other times there were long pauses during which she used the interpreter as a way to buy time and formulate her answers. White reminds the court that Meredith wrote her email to police in English, and is a graduate of a Canadian university.
Although Meredith insisted she was uncomfortable taking erotic pictures, the photos from that evening paint a very different picture, according to White. She says that Meredith’s story of Li kissing her and telling her that photographers and models often sleep together for art’s sake makes no sense. “Why would they need to understand each other better when the photo shoot was already done?”
White says Meredith was impressed with Li, his antiques, his designer Hermes belt, and his five homes. She finds it strange that the witness can remember all these details yet be so vague about the sexual assault itself. White further contends there is no explanation for Meredith going to sit on Li’s bed or for the fact that neither of them sustained injuries when she said there had been a prolonged struggle.
“As for the Crown trying to portray Meredith basically as a helpless young girl and my client as a predator, she was an adult,” White says. “She went willingly to his condo to do a photo shoot. She agreed to wear what he gave her based on the style of photo she had selected.”
White says Meredith sent the anonymous email not because she had been raped but so she would have something to show if anyone asked where she had been. She does not believe Meredith’s claim to have texted Li the next day—telling him off and corroborating her story. If such texts existed, White says, Meredith could have sent them anonymously to police, but instead she did nothing. “My client’s testimony is worthy of belief,” she concludes. “It is honest, sincere, forthright. At the very least it’s capable of raising reasonable doubt.”
As Brandes begins his closing arguments, he tells the judge, “The Crown’s submissions are in a way a mirror image of the defence’s. Based on the evidence at this trial you should be left in no doubt that the accused assaulted Meredith.”
He says the defence theory that Meredith was rejected and, as a result, has Li charged with sexual assault in an attempt to ruin his life makes no sense, especially given the one-year time lag. “That’s an incredibly strange, ineffective way—a very untimely way—for a person to exact that kind of revenge,” he says. If this were truly the motive, Brandes continues, she would “have taken action in the heat of the moment when she was full of passion and anger.” Instead she returned to her uncle’s and did nothing more than send an email to Toronto police.
“In terms of material fact,” Brandes says, “[her story] has been completely unchanged from the moment she wrote it until the day that she finished testifying here at this trial. She has never wavered.”
He says the small inconsistencies show that her testimony was not strategized or planned. He rejects White’s arguments that Meredith used the interpreter to stall for time. “There’s nothing nefarious about her remembering a detail about a Hermes belt” and then being unclear on the exact sequence of the sexual assault, he says. “Human memory is a strange thing.” He adds that lawyers make this point all the time.
The prosecutor characterizes Li as “a thirty-three-year-old man, who put himself out there as basically a fashion photographer for young women. Anyone who was on that open chat platform, on Momo, who was in his vicinity, would have been on his radar. He’d be able to see who was around and what they looked like.... Those are hallmarks of a person going out of his way to meet young attractive women and to sleep with them.”
Brandes describes Li as a narcissist whose story about the night in question has been concocted. “And I would submit to your honour, that for a person that thinks so highly of themselves, is as self-absorbed as Mr. Li, it would be very difficult to deal with that kind of rejection.”
He urges the court to reject Li’s evidence outright. “You should be left with no doubt that this young woman naively, unfortunately, made that appointment with him, did her best to keep it, and ended up, as a result, getting sexually assaulted.”
When asked by Brandes if he has any questions, Justice Robert Goldstein, who’s said very little throughout the trial, replies, “To some degree your theory is that I shouldn’t believe him because he’s creepy. And he may be creepy or not creepy, I don’t know, I mean that’s not a reason not to believe him.”
White asks and is permitted to make some brief comments before court is adjourned and the verdict scheduled for the following week. “Is the fact that he rejected her so out of the realm of possibility? He had a girlfriend…Is that so crazy? I mean I hate to think a man has never rejected a woman before.”
“We probably shouldn’t get into that today here,” says the judge.
Later that afternoon, I google the Li case, which had escaped my attention when it was first reported in 2013. “Self-styled Toronto ‘fashion photographer’ charged with sexual assault,” blares a typical headline. There were some 200 links to the news item which was widely shared on social media. Li testified he was devastated and wanted to hide, not talk to anyone
Police asked other possible victims to come forward, according to the articles. I phone the police to ask if anyone ever did. No, they say—nobody else came forward.
In fact, after that initial burst of media attention two years earlier, the Li case pretty much disappeared from view. All things considered, Li had recovered reasonably well. Although he had lost his job, as a result of the charges against him, he had managed to find himself another position, based in Hong Kong. I noticed that he sometimes used a slightly modified spelling of his first name so than when you Googled him under that version of his name there was no mention of the sexual assault charges.
It helped as well that Li was a chameleon. The shaggy haired guy in his mugshot bore almost no resemblance to the man I’d seen in court. For that matter, I couldn’t even be sure it was the same Li who was featured in a 2014 article about a swanky Yorkville condo—until I blew the photo up and recognized his Hermes belt.
Although Li had been polite to me, I could tell he wasn’t thrilled to have a journalist show up at the mostly deserted courthouse after the story of his arrest had disappeared from the media. If he were acquitted, Li would be in a position to put this whole mess behind him and move on. When you’re accused of sexual assault there’s no such thing as good publicity.
Who’s lying? Part 4
Part 4
Eight days after Feng Li’s trial ended, on the morning of July 10, the atmosphere in the Toronto Superior Court courtroom is less tense than it usually is when a verdict is imminent. Staff are laughing and joking. And although I’d seen the defendant’s lawyer Lisa White pacing the halls earlier, she and Li are now chatting cheerfully at the defence table. Across the aisle, the Crown attorney and the officer in charge appear relaxed.
Li’s parents sit quietly in the gallery. They are not stylish like their son. Li’s father is dressed in a denim-looking shirt and chinos. His mother wears a grey sweater over a dark floral print dress and is carrying a Louis Vuitton bag in the traditional colours. Her greying hair is pulled back in a bun.
Because the accused chose to be tried by judge alone and not a jury, Justice Robert Goldstein must provide reasons for his decision. He begins reading almost immediately after entering the courtroom. “Even in our hyper-sexualized, social-media driven world, where sexual gratification is just a swipe or a click away, no still means no. Sexual assault is not seduction,” he says. “For the reasons that follow, I find [F.L.] guilty. I reject his evidence. I do not find it to be plausible. It does not leave me in a state of reasonable doubt. In contrast, I accept [M.Z.]’s evidence.”
The legal principles to be applied in a case like this call for a two-step test as set out in the Supreme Court’s ruling R. v. W.(D.). It states that if a jury (or, by implication a judge alone) “believe the evidence of the accused, they must acquit; (2) if they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit; (3) even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept.”
After satisfying this requirement the judge or jury must then ask if “the Crown has proven the offence beyond a reasonable doubt?” If they answer yes, they can, as the judge in this case did, convict the accused.
Goldstein explains that the defence theory of an angry and rejected Meredith taking revenge made no sense given the nature of her contact with police. “Her behaviour was inconsistent with a desire to see F.L. arrested and charged,” he says. “Her behaviour was much more consistent with that of a sexual assault victim who was embarrassed than with a woman spurned and seeking revenge.”
Although Goldstein agrees with Li’s lawyer that the defendant’s testimony was straightforward and non-argumentative, the judge repeatedly characterizes his evidence as implausible. For example, he doubts Li’s statement that he first used the Momo app, on which he met Meredith, for work purposes. “If that was the case, then why did his profile include photographs of attractive young female models?” asks Goldstein. “I find that he used the Momo app for the specific purpose of meeting young women. It is much more likely that he contacted M.Z. than the other way around, and I accept her evidence and reject his on this point.”
Goldstein goes on to express skepticism about Li’s claim that he did not have any romantic or sexual interest in his photographic models. “The photos reveal a sexually charged atmosphere—which, I find, was the point. Furthermore, Momo is also used as a dating app. To accept Li’s claim would be rather like accepting some of the more famous spurious claims, of which ‘the cheque is in the mail’ is the most famous.”
In contrast, Goldstein deems Meredith’s testimony “credible and reliable,” so much so, he says, that her evidence alone can prove the Crown’s case beyond a reasonable doubt. While the judge concedes there were problems with Meredith’s reliability, especially regarding time sequences, they are, in his opinion, explicable and do not impact on her evidence overall.
Justice Goldstein concludes:
In my view, what happened was this: [F.L.] typically used these sessions in order to attract young women to his condo. No doubt some of these women were attracted to [F.L.]’s talent and sophistication. That is why I find [M.Z.]’s comment that [F.L.] said it was quite normal for models and photographers to have sex so believable. As I noted earlier, [F.L.] would not exactly be the first artist or musician to do this. I find that [F.L.] tried to have sex with [M.Z.] She refused. He pressured her. She resisted, but a slight 100-pound woman may not be capable of putting up strong resistance, even to a man with a knee injury. Of course, [M.Z.] was under no obligation to fight back. A simple “no” was enough to convert a refused seduction into a sexual assault. Her plea to him to at least use a condom did not change her “no” into a “yes.” This was a simple case of [F.L] failing to heed the familiar admonition that “no means no.”
After the judge leaves the room, a tense and shocked Li hustles his confused-looking parents out the door. Neither White nor Daniel Brandes, the assistant crown attorney in charge of this case, will talk to me about the verdict. Sentencing has been set for the fall.
I am surprised by the verdict. Based on what I’d seen of Li’s testimony and heard in the closing arguments, I found it hard to understand how the judge could possibly be convinced beyond a reasonable doubt that he was guilty. At that point, I had yet to listen to the full audiotapes of the trial, so I was curious to hear what had made Meredith such a compelling witness to the judge.
Listening did not provide answers or change my mind. I was still unable to conclude, as the judge did, that Li was lying. I also could not dismiss the credibility issues that White brought to light about Meredith.
And then there were the photos themselves. As an ex-magazine editor I’ve sat in on my fair share of photo shoots watching both amateurs and professionals before the camera. I found it implausible that Meredith had magically morphed into a Miley Cyrus clone based on nothing more than Li’s instructions. Her testimony and the Crown’s narrative of the naive young “girl” coaxed into performing sexily for a stranger’s camera struck me as scarcely more believable than the defence theory of the woman seeking revenge on a man she barely knew. If Li’s story didn’t make sense, neither did Meredith’s.
None of this is to imply that Meredith’s provocative posing was an invitation to sex, and it bears repeating that White never suggested any such thing. The defence argument was that there was no sex, that Meredith was not attractive to Li, that it was her that came on to him, and that when she was rejected, she took revenge by anonymously reporting Li for sexual assault.
Although it went unmentioned by the judge in his decision, White also argued that Meredith planned on using her email as an excuse should her boyfriend or family find out she’d gone to a stranger’s apartment for a photo shoot. White failed, however, at explaining how exactly the email was supposed to accomplish this.
Where White had more success—in my opinion if not the judge’s—was in revealing a complainant who was far more worldly than the innocent, newly-arrived foreign student Brandes had made her out to be. White pointed out that Meredith shared Li’s interest in expensive, designer goods—that she and Li had discussed her orange Prada bag, his Hermes belt, and his five homes. “I’m going to suggest a young man like my client was impressive,” White said during cross-examination.
Meredith responded that as soon as she saw the belt she thought to herself, “It looks fake.”
“What about the five homes?” White asked.
“I wasn’t impressed. He was trying to make me feel he was successful...he was telling those things to me trying to make me feel he was rich.” Meredith said she’d known enough braggarts not to fall for them. She didn’t sound at all like the young naive girl Brandes portrayed.
In a case like this, it would not be unusual for the defence to look into Meredith’s background to see if they could find anything that might be of use in court. White said at trial that the police never took a statement from Meredith’s boyfriend at the time of the assault, who might have been able to clear up the disagreement about whether he knew she was at a photoshoot. I’m curious as to whether the defence tried to track him down.
Similarly, Li testified that he and White talked to Catherine, Meredith’s friend from university who had also been photographed by Li, but it wasn’t explained why she was not called as a witness. Perhaps, Li and his lawyer believed the Crown’s case was weak enough that they didn’t need her. Or maybe, they were worried that Catherine might be lukewarm in her support, damning with faint praise or, worse yet, testify that Li was a lecherous jerk.
After the trial, I emailed both Meredith and Li. She didn’t reply. He said he would consider talking to me later. But not long after, I learned he had switched lawyers, which is common when a verdict is appealed. He hired Marie Henein, best known for representing Jian Ghomeshi against multiple sexual assault charges. When she took on that high profile case, she told the press, “It is not my practice to litigate my cases in the media. We will say whatever we have to say in a court of law. We will not be making any further media statements.”
The next time I saw Li was at his sentencing hearing in November 2015.
Read part 5 of Who’s lying?
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