“Not guilty” of second-degree murder, said the jury forewoman on Jan. 25; “not guilty” of manslaughter.
But to the charge of attempted murder for firing a second volley at the dying teen: “guilty.”
Relief at the acquittals and shock at the guilty verdict swept over Forcillo’s supporters, including more than 20 police officers in court with their union president, Mike McCormack. Others called it a victory for police accountability. But for Brauti, who spoke a few words to his client, this was only Phase One in the toughest case of his 18-year career. “A trial by YouTube,” he calls it, because within hours a video of the shooting was on the web.
After the jury exited, Brauti immediately moved for a stay of proceedings, claiming the state abused the process by prosecuting Forcillo for simply following his training. The motion will be heard in May.
This is familiar territory for the 47-year-old former prosecutor, whose 6-foot-2, 245-pound frame and deep baritone afford him easy command of a courtroom. In the 18 years since being called to the bar, Brauti has become, arguably, Toronto’s leading defence lawyer for police, earning him both praise for brilliance and criticism for aggressive tactics.
Among his successes, Brauti defended McCormack against Police Act charges of discreditable conduct, forging a close friendship between the two men. He won a rare preliminary hearing murder discharge for the only other Toronto police officer besides Forcillo ever charged with committing that crime on duty, Const. David Cavanagh. He slogged through two marathon cop corruption trials involving alleged bribery, obstruction, and theft. Both resulted in discharges or acquittals on most counts.
“I think he’s just a very good lawyer,” says Harry Black, another prominent barrister for police. Cop cases are never easy, he says, because the Crown throws enormous resources at them. And the Special Investigations Unit, which probes police cases involving serious injury or death, “prepares their cases like there’s no tomorrow.”
Roughly half of Brauti’s clients are police officers, but he represents other professionals, including the judiciary. In a case that drew international headlines, Brauti won the acquittal of former teacher Mary Gowans on charges of sexually assaulting a 15-year-old male pupil.
The key to success, Brauti says, is preparation and common sense. “I don’t care how good a natural lawyer you are; if you don’t prepare and you don’t employ common sense, you are not coming out on top.”
But some have criticized his tactics. Former SIU director Ian Scott says it was “completely inappropriate” for Brauti to tell the Forcillo jury, in his closing address, that he had been barred from calling evidence about Yatim’s state of mind. Justice Edward Then later instructed jurors to ignore these remarks. Brauti defends the move, saying he had to explain why he had not produced the promised evidence. His reasoning was “it was probably better to take a judicial scolding then have irreparable harm to a murder client’s defence.”
Shayne Fisher, an innocent man beaten by Toronto police, says Brauti seemed angry at times when cross-examining him. “It was like being on stage with a bully,” Fisher recalls. “You can tell he’s used to getting his way. He doesn’t like when people don’t bend to the way of his questions.”
McCormack, for his part, calls Brauti “a standup guy,” fiercely loyal and effective. “He gets to the information and gets to the facts. He’s not going to be pushed around.”
Brauti’s physical courage made headlines when he rescued a customer being attacked by a drunk at a McDonald’s restaurant nine years ago. Brauti fought the drunk, who ran off after crushing the lawyer’s fingertip. Brauti downplays the incident: “It wasn’t as big as people thought.”
The eldest of three boys born to teachers in the Toronto suburb of Scarborough, Brauti went on to earn a BA at McMaster University, specializing in theatre, then an honours degree in political science. He switched to his favourite subject, law, at the University of Toronto, where he was elected class president.
“He was a very well-liked and respected guy,” says Edward Iacobucci, a former classmate who is now dean of the law school. “None of us would be surprised by his success.”
Brauti enjoyed academics, going on to earn two masters degrees. He published 14 articles and co-authored two law books: Wiretapping and Other Electronic Surveillance; and Prosecuting and Defending Drug Offences. For 15 years, he returned to the law school to teach trial advocacy. “He’s a fantastic teacher,” says former fellow instructor Rob Centa, managing partner of Paliare Roland Rosenberg Rothstein LLP. “He is able to give very clear and constructive feedback. His students improved by leaps and bounds.”
After being called to the bar in 1998, Brauti joined the federal Department of Justice as a prosecutor, handling drug, extradition, fraud, and tax-evasion cases. Police officers sought him out to handle their prosecutions. “They knew that I had the academic skills to deal with complex issues,” says Brauti. “They also knew that I had a strong work ethic. But I think, most importantly, I was able to deal with them on an interpersonal level.”
Frustrated by bureaucracy, after five years, Brauti left to join McCarthy Tétrault LLP as a criminal practitioner. Police officers facing charges started approaching him to defend them. Brauti came to believe he could provide more personalized service than a big Bay Street firm for half the cost, so in 2004 he partnered with another former federal prosecutor, Peter Thorning, to establish their own practice.
Today, Brauti Thorning Zibarras LLP boasts 22 lawyers. Prominent criminal counsel Joseph Wilkinson and Michael Lacy joined in January. “He’s one of those people you instantly like in terms of his personality and the manner in which he approaches cases,” says Lacy.
Brauti is independently wealthy from forays into the restaurant industry. (He and partners recently sold three of his seven eateries for more than $40 million.) But Brauti still puts in 15- to 18-hour days at his practice. “I really enjoy the law,” he says. “I enjoy the challenge of defending people.” Recently remarried, Brauti also makes a point of seeing most of his 9-year-old son’s AAA hockey games.
Even police critics like defence lawyer Reid Rusonik admire his skills. “I’d love to see someone with Brauti’s immense talents defend more non-police officers, but I don’t begrudge him for a moment both the decent retainers and resources to do the job.”
Some say it’s easier to get police officers acquitted because of their union’s deep pockets and the reluctance of judges and juries to send them to jail. This claim irks Brauti. “The people who say that haven’t defended police officers,” he says. “If you gave me the choice of defending a civilian or defending a police officer — as far as an easy case goes — I’m going to take the civilian every day of the week.”