The
Economic Freedom
Network

Public Policy Sources 25:
Presentation and Analysis of Panel Text

[Previous] [Contents] [Next]

Having established the importance of the issue, I will now proceed. For each of the 11 paragraphs, I will first present the Panel Report text (PR, pp. 10-11), and then follow with my comments. The PR text will always be indented, and given in whole paragraphs.

Panel paragraph 1: General reasons for findings

Ms. Marsden’s credibility was an issue in the minds of the Panel, particularly in Mr. Donnelly’s absence. She testified that Mr. Donnelly had insisted the relationship be kept a secret. There were no witnesses who had accompanied them on dates, or even seen them eating lunch together. Nonetheless, the accumulated weight of many small items of direct and indirect observation and similar fact, brought out over some 16 hours of relevant testimony and questioning of 8 witnesses and Ms. Marsden leave the Panel with no doubt that the relationship existed and that its characteristics were as she describes.

This is mostly posturing. The number of hours is largely irrelevant. Further, if the proportionate emphasis in the PR is any indication, most of the time was spent on things other than this issue. The total number of hours spent on all issues does not indicate the time spent on this question, so we have an immediate palpable fallacy. Nor is the number of witnesses significant. What is crucial is whether sufficient, high-quality evidence on this issue has been amassed. Quantity does compensate for lack of quality.

The key empirical point is the remarkable lack of ordinary observation that would usually verify the existence of a romantic relationship. This enormous difficulty with Marsden’s case is barely mentioned as the Panel moves on. The short shrift given to such a huge anomaly strongly suggests that the Panel put little effort into assessing the difficulties in Marsden’s story.

Panel paragraph 2: Credibility of witnesses

As credibility is at issue here, it is important to note that the witnesses were not uniformly drawn from a homogenous social group of close friends of Ms. Marsden. Some were close friends of long standing: some were more casual acquaintances; one met Ms. Marsden for the first time while testifying. This diversity makes the sum of the evidence all the more convincing. Ms. Marsden’s testimony was rich in detail. Over the entire period of questioning by the Panel, no significant inconsistencies in her testimony were found. What appears in the following paragraphs is a much abridged summary.

Diversity of Witnesses Point: First Three Sentences

The diversity of witnesses comments consist of too much general glossing. Although not all the 8 witnesses are described as friends of Ms. Marsden, such a general argument is insufficient, since it matters whether crucial points are supported only by friends. Accordingly, this issue will be revisited after the summaries of testimony have been analyzed in the "Diversity and Quality of Witnesses" section. There is far too much hype and prejudice in the phrase, "This diversity makes the sum of the evidence all the more convincing," when the Panel has not demonstrated that the evidence is convincing at all.

Endorsement of Marsden’s Testimony

The PR endorses Marsden’s testimony on the grounds that the Panel found "no significant inconsistencies in her testimony." This statement is cryptic and inadequate for a number of reasons.

First, we are asked to believe in the Panel’s ability to ferret perjury, but are given no reason for such belief. Just how many cases of perjury have any of the Panelists detected? Had they had any training on the subject? A little humility at this point might have demonstrated that the Panel at least appreciated the difficulties, but we find no such modesty.

Second, there is no indication that the Panel looked for inconsistencies. If the Panelists failed to find something they never looked for, this is scarcely evidence that the testimony was true. Further, since Marsden had six months to prepare her testimony, efforts to expose inconsistencies might have to be diligent. Yet we are given no indication that there was any effort, let alone a diligent effort, to search for inconsistencies.

Third, the Panel never indicates the scope of their investigation in this vital area. The PR does not set out the extent that the Panel did or did not examine each of the following: (a) Marsden’s representations in her original complaint; (b) Donnelly’s response to Marsden’s complaint; (c) Donnelly’s complaint; (d) Marsden’s response to Donnelly’s complaint. Obviously the Panel knew about the existence of all four items. One eventually finds indications elsewhere that it looked at (a) and (b), but the Panel never states whether it even looked at (c) and (d).9

Fourth, the Panel fails to state whether there were inconsistencies in Marsden’s written representations or between her testimony and the written representations, which are not even listed. This is a crucial omission. If the Panel had indeed spent this effort, it is not really credible that all three members forgot to mention such an important step.

Fifth, the Panel never seems to take into account that it might be dealing with a well-planned lie, for the PR describes no measures to protect against this possibility. No transcripts of the testimony were made, nor did the Panel review the recordings.

In summary, the Panel seems impressed by such superficial things as Marsden’s story being "rich in detail," while failing to notice that the story was amazingly impoverished in observable detail.10 For most of the alleged assaults, even the supposed dates of occurrence are missing. There is no indication that the Panel looked for discrepancies, so the fact that it never found them can scarcely be evidence that Marsden’s representations were consistent.

Panel paragraph 3: Marsden’s testimony

Ms. Marsden testified that the romantic relationship began at the end of a dance at the Summer Swim Coaches Conference in May, 1994. From then until mid-Fall, 1994, the relationship seemed satisfying (although in retrospect she could see the beginnings of the psychological harassment). It was a friendship only, which was what she desired. They talked and went out to lunch occasionally on- and off-campus. Around November, 1994, Mr. Donnelly became worried that their relationship was attracting notice from members of the Swim Team and others around the SFU pool, and he began to insist on secretiveness and meetings at his home, away from SFU. When Ms. Marsden confronted him about this, Mr. Donnelly replied that he didn’t want people to know because it would be a conflict, but didn’t clarify any further.

The Panel fails to focus on the issue at hand, even when the issue is critical. Marsden’s opinion of the relationship and what she desired are largely irrelevant to proving whether a relationship existed. Marsden’s characterization of the relationship is totally irrelevant if the relationship did not exist. Even in assessing this most crucial issue, the Panel seems to be easily sidetracked.

What is far more relevant are things such as where she claimed they went. Who paid? Was it cash or credit? What about credit card receipts? If they ate frequently on campus, why are there no witnesses who knew them? Surely at this point, such questions are far more relevant than Marsden’s retrospective claim of the beginnings of psychological harassment. This clearly gainsays the Panel’s self-proclaimed effectiveness. As noted above, the Panel then asserts:

Around November, 1994, Mr. Donnelly became worried that their relationship was attracting notice from members of the Swim Team and others around the SFU pool, and he began to insist on secretiveness and meetings at his home, away from SFU.

If what is meant is that Marsden told them these things, the Panel should say this, no more and no less. Even with Marsden, the Panel should have distinguished between what she claimed to have observed and heard, and what she attributed, which is scarcely evidence. The supposed reason for Donnelly’s alleged behaviour is simply asserted as if the Panel could read minds.

The great fallacy is that the Panel is assuming the relationship existed. This is completely wrong, since this is what the Panel is supposed to be trying to prove. Such a patently circular approach indicates that the Panel is failing to give the issue fair consideration.

Panel paragraph 4: Witness #8

Witness #8, a friend of Ms. Marsden, testified that Ms. Marsden had talked with him about her relationship with Mr. Donnelly. He did not provide a date when he first became aware that they were dating, but did mention that in October, 1994, she left a Halloween Party early in order to see Mr. Donnelly. He also observed that it became more difficult to see her socially, as she seemed always busy with plans with Mr. Donnelly.

The PR fails to give a clear account as to what Witness #8 actually said. He never saw Marsden and Donnelly on a date, nor did Donnelly tell him, or else this surely would be mentioned. There is no indication he had ever seen Donnelly. Just when and how did he become "aware"? Does he claim to know this himself? If so, what is his evidence?

Let us go on. How does the witness know that Marsden left a Halloween party early, "to see Donnelly?" (Is he clairvoyant?) Also, just how did Witness #8 know that Marsden was busy with plans with Donnelly? And what does "being busy with plans" mean? Was Marsden supposedly actually going places with Donnelly, or was she planning to go places with Donnelly? Or was she was brushing Witness #8 off? (Such things have been known to happen.) There is no indication of any evidence that Witness #8 saw anything that would indicate that what Marsden claimed was true.

The Panel gilds the testimony outrageously when the PR asserts that Witness #8 knew these things to be true in the section supposedly proving that the relationship existed. Further, since Witness #8 is cited as knowing things he could not know, we can not even be sure that he really observed Marsden leaving the Halloween party. Maybe Marsden simply told him that also. Still, it really makes no difference, since the witness does not report seeing anything remotely probative.

We learn right away that the Panel fails to distinguish between observation and speculation, since the PR describes the latter with language appropriate for the former. There is something terribly wrong about referring to what is to be proved as factual in the very argument that is supposed to establish that the thing is factual. It is as if a student had invoked the Pythagorean theorem in the midst of the proof of the Pythagorean theorem, only with vastly more harmful consequences.

Panel paragraph 5: Witness #7

Witness #7, a friend of Ms. Marsden, testified that they had discussed the relationship virtually from its start in May 1994. She had just returned to Vancouver, and they were forming relationships more or less in parallel. The commonality led to long discussions about how they were handling aspects of the respective relationships, as they developed beyond casual friendships. Witness #7 testified she had no reason to doubt that Ms. Marsden’s relationship with Donnelly was genuine. While Ms. Marsden seemed to genuinely like and respect Mr. Donnelly, there were times when she was troubled, wondering if he was acting in her best interest or in his own self-interest. Witness #7, too, commented that Ms. Marsden became much less available socially, due to spending time with Mr. Donnelly.

Once again, the Panel starts off by assuming the existence of what is to be proved, as circularities abound. Next we come to the drivel of the second and third sentences, which would be amusing, were this not so dangerous. What does the witness have to tell us that the Panel thinks is important? Specifically, Witness #7 had "no reason to doubt" the relationship was genuine. That somebody has "no reason to doubt" is scarcely evidence.

Moreover, such a statement by the Panel clearly indicates that the burden of proof is in the wrong place. The question should be whether Witness #7 had observed anything that would enhance belief in Marsden’s story. Information of this kind is conspicuous by its absence. Witness #7 really has nothing positive to offer except what Marsden told her.

Panel paragraph 6: Witness #6

Witness #6 recalls talking with Ms. Marsden about the relationship from Fall, 1994. As she was a member of the SFU Swim Team at the time, and coached by Mr. Donnelly, she deliberately cut Marsden off in order to avoid hearing details which she felt would be a conflict.

Surely this is not much and not very relevant. It suggests that the Panel was anxious to accommodate Marsden in building up the witness count on this issue.

Panel paragraph 7: Witness #5

Witness #5, Ms. Marsden’s sister, recalls being told about the reconciliation at the Summer Swim Coaches Conference within days of the event. On many occasions she observed Ms. Marsden leaving late at night to visit Mr. Donnelly, returning in the wee hours of the morning.

Even ignoring the obvious problems of bias, we find that the witness offers little of substance. Unless she is blessed with clairvoyance, the witness did not see Ms. Marsden leaving, "to visit Mr. Donnelly." That is just something the witness and Panel are assuming. Once again, speculation is elevated to evidence. Nor are we even told when during the supposed 16-month relationship these nocturnal excursions supposedly took place.

Panel paragraph 8: Witness #4

Witness #4 worked with Ms. Marsden between October, 1994, and April, 1995, and learned about the relationship with Mr. Donnelly in the course of casual conversation. They talked about recent dates, and she observed Ms. Marsden talking to Mr. Donnelly by cellular phone, early in the morning before the start of work. Earlier, in Summer, 1994, Ms. Marsden had mentioned to her that she was dating Mr. Donnelly. Witness #4 also testified that prior to October she had often seen Ms. Marsden and Mr. Donnelly together in his office, for 2 - 3 hours at a time. Sometimes they would be conversing, other times he’d be working and she’d be studying or reading the newspaper. Mr. Donnelly definitely did not seem uncomfortable with her presence. Sometime in Spring, 1995, she’d asked Mr. Donnelly about the relationship: he’d flatly denied it. She had believed Ms. Marsden (in her words, "I found the notion of Rachel misunderstanding what their relationship was, absurd."), and assumed Mr. Donnelly denied the relationship because it would be a conflict given his position as Head Coach. Around this time, she’d realized that she no longer saw Ms. Marsden in Mr. Donnelly’s office. His comment was that Ms. Marsden had been annoying him. Ms. Marsden had told her roughly the same thing, but added that Mr. Donnelly gave her specific times when she was permitted to come by, phone or visit.

Preliminary Comments on Testimony

Once again, the Panel assumes what needs to be proved. If the Panel means that Marsden told Witness #4 about the claimed relationship, then the PR should say this. Even if accurate, the testimony about the cellular phone conversation proves nothing probative. There is no evidence cited that indicates Donnelly was on the other end, or that Witness #4 heard anything that indicated a romantic relationship, or even that Donnelly ever called Marsden. Nor are we even told how often and how much she supposedly talked to Donnelly. So the Panel cites nothing probative.

Presence of Marsden in Office

Finally, after four witnesses, we have something substantive. Donnelly let Marsden stay in his office for long times. This could conceivably be something relevant that Witness #4 observed. Still, there are problems with the Panel’s report of the testimony of the witness. She claims that she had seen Ms. Marsden and Mr. Donnelly together in his office 2 to 3 hours at a time. Just how did the witness do this? Was she there too? Who else was there? Did she monitor the door? All this is sloppy, but not surprising, since witnesses seem to know things in mysterious ways. Since this Panel fails to distinguish between observation and hearsay, it is likely that much of the "observation" was augmented by things the witness guessed or was told.

The next point is that Witness #4 noted that Donnelly indicated he had banned Marsden’s office visits and said that they annoyed him. The witness points out that Donnelly did eventually exclude Marsden although she assumes (based on no evidence other than Marsden’s word) that the prohibition was limited. The key point is that there was a ban or strong limitation on Marsden’s visits, which is actually confirmed to some degree by Donnelly’s statement, by Marsden’s statement to Witness #4, and by Witness #4’s own observations.

Donnelly’s Denial of Relationship

We find that Witness #4 asked Donnelly about the alleged relationship and Donnelly, according to this witness, "flatly denied it." Note he did not say something like: "it was over," or "not that big a deal," or "was exaggerated." He flatly denied it. So here we have contemporaneous assertion of what was to be his later position, something that carries great weight when made by Marsden, but apparently no weight when made by Donnelly.

Witness #4 said she did not believe him, which of course is really beside the point. In real courts, favourable testimony coming from a hostile witness is often regarded as better than similar testimony from friends. Yet here the Panel takes the opposite view, which is highly prejudicial.

Witness #4 asserted that "I found the notion of Rachel misunderstanding what their relationship was, absurd." Not only is this a conclusion of the witness, but witness and Panel are attacking a straw man. The issue is whether Marsden was lying, not whether she misunderstood. This example illustrates one of the many pitfalls of opinion evidence, since the opinion was based on a false assumption of what the alternative hypothesis was.

Further, we are told that Witness #4 "assumed Mr. Donnelly denied the relationship because it would be a conflict given his position as Head Coach." Thus, Donnelly’s contemporaneous assertion is rejected based on the speculation of Marsden’s witness, while every report of Marsden’s assertion is regarded as strengthening her case. This is a completely biased approach. And once again, what the witness assumed is not evidence.

Panel paragraph 9: Witness #3

Witness #3, Ms. Marsden’s employer at the time, testified that she’d known Ms. Marsden had a boyfriend from around June, 1995. While the relationship struck her as unusual for the seeming lack of time together, there was an appropriate level of, in her phrase, "couple knowledge" for a serious relationship. She never doubted the relationship was real.

Barring clairvoyance, the PR once again gilds the testimony by claiming the witness "knew," when all this can possibly mean is that Rachel Marsden told her this. Such pervasive abuse of evidence cannot be attributed to a simple lapse or an honest mistake. The only real observation here is that Marsden appeared to spend little time with this supposed boyfriend who is not even identified as Donnelly. Although minor, this is the only coherent empirical point cited by the Panel. Yet this possibly real information is swept aside by citing what Witness #3 believes, based on "couple knowledge," which is utter babbling.

And finally once again, the witness’s faith is not evidence. Her lack of doubt may be merely an indication that the witness never considered any other possibility. But more important, her opinion is not evidence. The only relevant observation cited actually weakens Marsden’s case. Still, the Panel seems to be so set on conviction that this worthless testimony is taken as evidence of Donnelly’s guilt.

The next paragraph of the Panel Report goes on to Witness #1, since Witness #2 is not cited on this issue. The implication of this lack will be examined later. We now go to the next paragraph of the PR, which considers the testimony of Witness #1.

Panel paragraph 10: Witness #1

Witness #1 testified that she’d seen Ms. Marsden and Mr. Donnelly together around SFU while she was a member of the Swim Team, but had the preconceived notion that he was just putting up with her. However, other people around the pool area seemed always to be wondering what was going on between them. Immediately at the end of her competitive career, she had gone on a single date with Mr. Donnelly, at his instigation. In the course of the date, they had discussed Ms. Marsden briefly. Mr. Donnelly described her as having a crush on him, and said that she would be angry when she found out they had gone out together. Subsequently, she had been contacted by Ms. Marsden to be a witness. She now tended to believe Ms. Marsden’s version of events, but found the whole situation difficult. She stated that she liked and respected Mr. Donnelly, but that she gave Ms. Marsden’s story credibility because her descriptions of his house and mannerisms matched her own experience.

Basic Implications of Testimony

The abuses of evidence get worse and worse. Gossip suddenly becomes evidence as we hear that

. . . other people around the pool area seemed always to be wondering what was going on between them.

Also it would seem that either the Panel or the witness is engaging in hyperbole in a situation in which literal accuracy is crucial (or would be were the evidence probative). If such exaggerations are blithely reported as evidence, other less obvious exaggerations may have been taken as literal representations. And just how did Witness #1 know what these people were always wondering about? (Clairvoyance again?) Let us just leave this by noting that rumours, speculation, and what the witness was persuaded to believe are not evidence.

The only evidence that Witness #1 gave is that "Ms. Marsden’s . . . descriptions of his house and mannerisms matched her own experience." Her opinion of what this might mean is not evidence. No details are presented here, and the witness does not sound terribly decisive. Even assuming witness accuracy, there are at least three other possibilities: (a) Marsden obtained descriptions from someone else who had been in the house; (b) Marsden had been in the house on some sort of visit that did not indicate a 16-month romantic affair; (c) Marsden formed her descriptions in part after talking to the witness. Yet the Panel considers none of these possibilities, nor makes the slightest effort to preclude them.

A Major Problem

Further, there is a huge weakness here that the Panel conveniently omits at this point. A later page of the Panel Report contains the following remarkable sentence:

From a tour of Mr. Donnelly’s house, Witness #1 was able to provide some verification of Ms. Marsden’s description of the bedroom furnishings, but admitted that her memory was becoming confused with descriptions from subsequent conversation with Ms. Marsden. (PR, p. 14)

Instead of following up this intriguing suggestion, our Panel blissfully assures us that:

(Her confusion, however, does not detract from the testimony of other witnesses).

Then the Panel drops the subject and goes on to other things, which is wholly inappropriate. This "confusion" indicates that much of the testimony of this witness was suggested to her by Marsden. At the least, this problem gainsays the arguments made earlier that Witness #1 helps prove the existence of the relationship.

Panel paragraph 11: Panel’s summation of evidence

From the witness testimony, it seemed clear that a relationship existed, starting in May, 1994, as Ms. Marsden testified.

Although there is plenty more to come, the remaining PR material is all predicated on the presumption that the alleged romantic relationship existed. The PR follows with material on duties of swim coaches and discussion of the exploitive nature of this supposedly now firmly-established relationship. Everything else is interpreted in terms of the relationship having been proved to exist, so that all other evidence, no matter how weak, is amplified by this supposed proof. Marsden is vindicated and should be henceforth believed. Moreover, this supposed vindication is taken as being so strong that from hereon Donnelly is assumed to be a liar who is to be condemned even for the offense of denying his guilt (PR, p. 19).

Yet this watershed decision is reached in a leap and a bound. The Panel makes no effort to show how the testimony mandates the conclusion. None of the problems are addressed at all. Nor does the Panel even indicate which of the cited items are supposed to be probative. In view of the obvious limitations of the evidence, this lack of synthesis alone should have been grounds for rejecting the findings of the PR.