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The AIH Transcript for March 30, 2018

Hosts: Carol Off and Angeline Tetteh-Wayoe

STORIES FROM THIS EPISODE

Prologue

CAROL OFF: Hello, I'm Carol Off.

ANGELINE TETTEH-WAYOE: Good evening, I'm Angelina Tetteh-Wayoe sitting in for Jeff Douglas. This is As It Happens.

[Music: Theme]

ATW: Tonight…

CO: Acquitted. It was one of America's deadliest mass shootings — 49 people were killed at Pulse — a gay nightclub in Florida. Today a jury found the killer's widow not guilty of aiding him in a terrorist act.

ATW: Not so fast. The Liberal Government announces it's ending peremptory challenges to make jury selection more just — but one criminal defense lawyer argues it will do just the opposite.

CO: Deadly day in Gaza. A reporter describes how Israeli soldiers killed more than a dozen Palestinians at the start of what was to be six weeks of peaceful protest.

ATW: Clinical detachments an Ohio woman is one of hundreds whose eggs and embryos were lost after a malfunction at a fertility clinic — and she says she's experiencing a roller coaster of emotions.

CO: Bean versus Bean. A Chicago columnist attacks Houston after that so he acquires a shiny silver sculpture similar to the Windy City's famed Cloud Gate Bean. And he gets a chilly response from our Texan guest.

ATW: And…Poutine examination. Since April Fools balls on Sunday this year, we dig into our archives for a previous prank we played when Carroll interviewed food writer Calvin Trillin about curds and fries being served at the royal wedding. As It Happens: The Friday Edition. Radio that's unrepentant for that gravy mistake.

[Music: Theme]

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Part 1: Pulse nightclub shooter's wife verdict, Gaza Protest Deaths, Bean V. Bean

Pulse nightclub shooter's wife verdict

Guest: Melissa Jeltsen

ATW: Two years ago Omar Mateen stormed into Pulse, a gay nightclub in Orlando, Florida, and killed 49 people. Today his widow Noor Salman was found not guilty of helping him with that attack. She was charged with aiding and abetting the commission of a terrorist act months after the killings took place. The FBI claimed to have obtained a confession — a confession that Ms. Salman’s defense argued at the trial was forced and false — the jury agreed. Melissa Jeltsen has been covering the trial for Huffington Post. We reached her in Orlando, Florida.

CO: Melissa, what was the reaction when the court acquitted Noor Salman today?

MELISSA JELTSEN: Well Noor started crying, and her family was also in the courtroom and they started hugging each other. I think it was a really emotional moment. We heard from her lawyers later and they said she was overwhelmed and very emotional and just wanted to go home to be with her 5-year-old son. We got a statement later from the owner of the Pulse nightclub, who was in the room at the time, and she said we trust the jury and we all need to move on and we know that it was Omar Mateen who pulled the trigger not Noor.

CO: It's extremely unusual to have this kind of a verdict in a terrorism trial in the United States. The prosecution has had a very good record of success, and especially considering it was in Orlando, the very city where the shooting had happened. What was the prosecution's case against Noor Salman?

MJ: So, they had really argued to the jury that Noor Salman, even though she wasn't radicalized at all, they could find no evidence in her cell phone social media that she'd ever even looked up ISIS. They argued that she herself wasn't radicalized but she went along with her husband’s plan. And they had to sort of suggest a motivation for her, so the motivation they suggested was that she just wanted money. He bought her a ring before the attack and some other purchases. So I think they really sold her as a sort of calculated, materialistic woman who was content to have her husband massacre people and then die himself, as long as she got a few jewels out of it. And I don't think that really rang true to the jury. I mean, for one she didn't have any source of income herself so she would have been sacrificing her husband and then have nothing to live on. But also, we heard from her family and her friends throughout the trial and they described a very simple woman who was in special ed during school, who was really loving and was not at all political or ideological. So I think those narratives clashed.

CO: But did they not have a confession from Ms. Salman that she gave to the FBI in which she said that she had helped him?

MJ: Yes, the confession, which has always been disputed by the defense, the FBI I got the confession after interrogating her for 11 hours the night of the massacre. They came to her house and picked her up at 4:30 in the morning with her child. During the interrogation they told her that her husband was dead in front of her kid, and then they brought in a polygraph examiner — they never used the polygraph — but he basically just pushed her over and over to give them more statements. And so he ended up writing it in his handwriting. So it's not in hers. He did not audio or video record this interview. And by the end they have the statement that's very clear, that says “I knew my husband was leaving that night. He was going to Pulse. I knew because we'd been to Pulse together. And I saw him looking at the Pulse website on his computer.” Now all of those things were found to be untrue based on forensic evidence. So it was very clear in the trial that Omar Mateen picked Pulse as a crime of opportunity that night, when he left the house he was not intending to go to police. He initially went to Disney Springs, found it quite heavily armed with security, and so Googled downtown Orlando nightclubs. He then went to another one, Eve Orlando, also found that one had a lot of security — and so thirdly ended up at Pulse. So the fact that her quote unquote confession said I knew who was going to Pulse the defense would say how would she know. We can look at his search engine history. We can see his GPS, we know that he didn't intend to go there. And the other parts of the confession also were not able to be corroborated. They had never been there before. They could look at their cell phone data and they had never accessed the Pulse Nightclub website. They even subpoenaed the server for Pulse and they had never accessed it before. So it really fell apart. That confession had so many things that couldn't possibly be true. I think it left jurors wondering where did this information come from if not from her.

CO: There was also some startling information that came out of the trial, and that's that the Omar Mateen’s father — this is the killer — his father had actually been an FBI informant.

MJ: Yeah. We found out — the defense found out — and the public right after the prosecution rested their case. They told the defense just so you know Omar Mateen's father was an FBI informant for 11 years. I think they were pre-empting if he was called to the stand. So the defense filed for a mistrial at that point, because they said you know had they known that their defense strategy would have been very different. But I think what we learned during the trial, as we heard from the FBI agent who managed Omar Mateen’s father Seddique Mateen, as an informant. And also he investigated Omar Mateen in 2013, 2014. He said on the stand that when he went and met Omar Mateen he had be considered making him an informant too. But there was real questions raised about when that investigation was opened into Omar Mateen in 2013. You know, that case was eventually dropped and no charges were brought forward. So I think a lot of people are wondering what happened there.

CO: So the FBI is facing a lot of scrutiny over this then?

MJ: Yes, I would say so. Throughout the trial we saw many, many FBI agents who came up and testified about how suspicious they found Noor — her behaviour that night. But my specialty is domestic violence, and we know that she was a really severe victim of violence at his hands. And when I talked to an expert about this she said it’s quite common for victims of domestic violence to have a reaction unlike what you might expect. Like they found her too passive, she didn't ask the tough questions. She was a bit removed, and that to them was suspicious. But I think you can look at it through a different lens of trauma and be like oh no that makes sense how she was reacting.

CO: You wrote a piece called How Noor Salman Became The Scapegoat of the Pulse Massacre. Why do you think she was a scapegoat?

MJ: Well, I think in this community in Orlando 49 people were killed and that that's a real hole here. So many people are hurting and there's a real desire to understand what went wrong and make someone pay the price. And we don't have on Omar Mateen, he died at the scene. He can't be held accountable. I think there was a desire to bring someone to justice, you know, and it was up to the jury to decide whether they got the right person or not. I think they decided that they didn't.

CO: Wow, such a story. Melissa, I appreciate you telling it to us. Thank you.

MJ: Thanks so much.

ATW: Melissa Jeltsen is a senior reporter at Huffington Post. She was in Orlando, Florida.

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Gaza Protest Deaths

Guest: Fares Akram

ATW: It's been the deadliest day in Gaza since 2014. The Palestinian Health Ministry is reporting that at least 15 people have been killed, and hundreds injured, by Israeli gunfire on the border with Gaza. About 20,000 Palestinians have gathered in a tent city near the border fence. It was supposed to be the beginning of six weeks of protest called The Great March of Return — demanding the right to go back to some of the lands that became the state of Israel in 1948. Israeli authorities say they were responding to riots by some of the protesters, who they say threw rocks and Molotov cocktails. Fares Akram is the Associated Press correspondent in Gaza. We reached him in Gaza City.

CO: Fares, what is the scene now on the border between Gaza and Israel?

FARES AKRAM: Now that things have calmed down as the sun set and the dark has fallen. But it was really a bloody day. The demonstrations that the organizers, including Hamas the militant group that controls Gaza, the demonstrations were planned to be peaceful. But the tens of thousands of people really headed to the tent cities or tent camps where the organizer had advised.

CO: So describe this tent city. Just give us a background as to how it came that there were about 20,000 Gazans who were in this tent city at the border fence — just describe that for us?

FA: The makeshift tent camps in five locations in the Gaza Strip from south to north. Those camps were set up by the organizers to host the demonstrators.

CO: So this was the first day of what was going to be six weeks of protests at the border, and I'll get the sense from you later on what they were planning, but when did things become violent? What happened?

FA: Thousands of protesters did not abide by instructions and they kept moving to the Israeli border. The tents are located 700 metres away from the border. But the demonstrators got as close as 100 metres from the border.

CO: So some thousands started to walk closer to the border. And what did they do?

FA: The great majority of demonstrators they just sat near the border to watch or standing near the border. But a few dozen of them get too close to the border and they threw rocks on the Israeli forces with a heavily fortified behind the sand mounds and concrete watchtowers. Israeli forces responded with tear gas and live ammunitions. In East Gaza City where I was standing I saw at least five injuries by live gunshots in their legs being evacuated to the hospital. And from that place four people were among the 15 who were killed today.

CO: How many injured people?

FA: More than 1,000 people were injured according to the ministry.

CO: The IDF, this is their statement that they tweeted that said “Thousands of Palestinians are rioting in six locations in the Gaza Strip, rolling burning tires and hurling stones at the security fence and at IDF troops who are responding with riot dispersal means and firing towards main instigators.” How does that compare with what you saw?

FA: Yes, some people went too close to the fence and they threw stones and rocks and they rolled burning tires toward the fence. However, speaking about the high number of injuries, sometimes especially the tear gas was being dropped constantly on the crowds. And there are, according to the Health Ministry's, more than 700 people were injured by live gunshots. And those may not be the main instigators.

CO: And as you say that this protest was supposed to go on until May 15th. Do you think that the protests, the six week protest, will continue after what happened today?

FA: I think the organizers will reconsider their decision, they will come up with new plans. For example, at the end of the day the organizers announced that tomorrow will be a day to provide support to the families of the people who were killed, which means going to the mourning houses. And so they are not interested in keeping so many people around the border.

CO: What do you think will be the fallout of what happened today? This is the deadliest day in years in Gaza. What do you think will be the consequences of this?

FA: The consequences will be the organizers themselves will try to double their effort to make sure that people will abide by the instructions. But however, this death toll may generate more motivations for the people to go or at least change the tactics instead of going to the border and be killed, there might be some militancy involved in the clashes.

CO: Just finally, why do you think Israel responded with such force? Why do you think the IDF opened fire so openly and kill so many people? What do you think that was about?

FA: Because the Israeli army has made some red lines, including getting too close to the border or trying to cross the border fence. Also the number of people on the border was so large. This is the first time Gazans headed to demonstrate around Israel's border with this number, with this large a number. So I think the Israelis were trying to send the message clear that they will not tolerate any such moves.

CO: We will leave it there. Fares, I appreciate speaking with you, thank you.

FA: Thank you.

ATW: Fares Akram is an Associated Press reporter. He was in Gaza City.

[Music: Ambient Tones]

NHL Dream Come True

ATW: It might have been the most exhilarating and terrifying fourteen-and-a-half minutes of Scott Foster's life. He's an accountant from Sarnia, Ontario. And last night he found himself minding the nets for the Chicago Blackhawks. He's one of several emergency goalies for the team who never actually expect to play. But last night both of the Blackhawks goaltenders ended up out with injuries. So in came Scott Foster to finish the game — it was his NHL debut. The Blackhawks beat the Winnipeg Jets 6-2. Not bad for a guy who usually tends net for his beer league team. Here's what Mr. Foster said to reporters after the game.

SOUNDCLIP

SF: Well, the initial shock happened when I had to dress. And then I think you just kind of black out after that.

REPORTER: Have you been the guy kind of on standby this year just in case this happens?

SF: There's a collection of guys. I think I've done maybe 12-15 games I’ve come here. Usually I just head upstairs, watch game from the press box, have a bite to eat and head home. You come to enough games guys do get hurt. You just don't think that it's going to happen to you. I mean, there's a lot of games that are played every night and, you know, this is — 1 it's a unique story still, so it's fun to be part of.

REPORTER: What are you going to tell your buddies tomorrow?

SF: I made about 30 saves and a one-nothing win.

[LAUGHTER]

REPORTER: What’s the name of your beer league team?

SF: A couple of them. 200 by 85 — the size of the rink. And White Company or something. It changes every year I think. Whoever's willing to fork out some money, you know, put their name on the front and maybe buy a couple drinks.

REPORTER: What’s your day job?

SF: I'm an accountant by day, so a few hours ago I was sitting on my computer typing on a 10-key and now I’m standing in front of you guys just finished 14-and-a-half minutes of NHL hockey.

REPORTER: You get any advice before you went out?

SF: I don't think I heard anything other than put your helmet on. Now I'm standing here.

REPORTER: You see Joel Quenneville just laughing as you were getting ice?

SF: I think I would too.

[LAUGHTER]

REPORTER: Were you nervous? What were your thoughts?

SF: You know, it's funny you’d think there'd be a lot of pressure. But really tomorrow I'm going to wake up, I'm going to, you know, button up my shirt and I'm going to go back to my day job. So what pressure is there for me?

ATW: Scott Foster speaking to reporters after making his NHL debut with the Chicago Blackhawks last night. The team beat the Jets 6-2.

[Music: Hockey Arena Music]

Bean V. Bean

Guest: Lisa Gray

ATW: There is a battle going on between Houston and Chicago — over two beans. But these aren't just any beans. One is the famous Silver Cloud Gate Bean sculpture in Chicago by British sculptor Anish Kapoor. But now, Chicago won't be able to brag that its bean is an original — because Houston just got its very own shiny legume sculpture — It's called Cloud Column. That prompted Chicago Tribune reporter Kim Janssen to write a column headlined: Unoriginal 4th place Houston gets its own bean sculpture... whatever. Lisa Gray is an editor at The Houston Chronicle. Today we reached her in New Orleans.

CO: Lisa, what did you think when you read Kim Janssen’s column where he calls Houston a culture-less abyss.

LISA GRAY: I snorted. He was clearly somebody who's never been to Houston, you know. What is he thinking? So I sent him an email. It's on! You mess with my city, it’s on!

CO: But this back and forth you had with him begins with — well it’s centred around these two sculptures you both have. Cloud Gate in Chicago, they call it The Bean, and you have recently acquired Cloud Column. How similar are these two works?

LG: They are by the same sculptor, Anish Kapoor, and they're in the same series. So they're both shiny ovally things. But you know a 3-year-old can tell the difference. Ours is vertical. People say it looks like you know a pill or a jalapeno. It's up there reaching for the sky. Theirs, The Bean, is horizontal kind of lying on its side, it looks a little tired — but it's shiny. They're both pretty. I would be happy with either of them.

CO: So anyway the war of words continues with Kim saying well, it's because your bean that’s up right is uptight, and our bean is chill and lying down — like Chicago, far more together. Houston's just kind of, again, this abyss. You have a bean that doesn't know how to relax.

LG: And this is more about Chicago and Chicago's insecurity than it’s really about the art. Houston is growing and growing fast. It's energetic, people are moving here, our economy is booming. Chicago is losing population. Pretty soon she is going to pass Chicago nation's third largest city and Chicago doesn't like that. The idea that Houston is, in any way encroaching on it, I think touched their nerves.

CO: So Kim fires back — because you say, well I think you're being defensive and your reaction to this because you're losing population and everything, and he says are we feeling. Yes. He says the president has never said anything nice about us, our state is broke, our people are leaving, our landlord wants us out of our own building by May. But he said the idea that that Houston, that a giant Texas suburb masquerading as a city may soon supplant us is galling. But he still says your bean inferior.

[LAUGHTER]

LG: And he hasn't even seen our bean, he hasn’t seen my city, you know. This is about Chicago and poor Chicago, I feel bad for it. But, you know, our bean is actually better. I hate to tell him this, our bean was the first bean. Our bean was handmade in the the sculptors studio. Their bean was contracted out, it’s a secondary bean. I'm sorry, I can't help it.

CO: This is something you learned that in fact Anish Kapoor, though you got the second, that it was actually a bean he made much earlier, it was the prototype and it was handmade by the artist. So you have that lord over for Kim Janssen as he defended his bean.

LG: Yeah. It's a really nice sculpture. We're sorry, we didn't mean to infringe on Chicago's point of pride. I don't think most Houstonians knew that it was Chicago's point of pride or that they would take umbrage.

CO: Well, it sounds for the most part he's being ironic. How did people in Houston react to this war?

LG: They are mainly laughing about it. Normally Houston considers its rival to be Dallas and maybe Austin. We don't usually think of ourselves as being in a fight against Chicago, but, you know, if Chicago wants to start a fight. Oh sure it we’ll play. Our bean is better, we’re winning.

CO: Do you know how people in Chicago are responding to this dispute?

LG: Oh, they're grumpy. I'm getting some stuff on Facebook and Twitter. They're calling Houston’s bean a vibrator lookalike, and a suppository lookalike.

CO: And what are your people countering that with.

LG: They're mainly shrugging. Houstonians are out taking selfies with our bean. They like it, they say maybe it looks like a jalapeno or a vitamin pill. We haven't decided whether we're calling it the H-Bean as opposed to the Chi-Bean or if we're going to call it something else entirely. I'm pretty sure nobody is ever going to call it Cloud Column.

CO: Maybe when the weather improves in Chicago they'll feel better about it.

LG: I hope so. I really hope so, but if not they're welcome to come visit — or to move here.

CO: Lisa, thank you. Bye-bye.

LG: All right. Thanks a lot. Bye.

ATW: Lisa Gray is an editor at The Houston Chronicle. And if you would like to see some photos of the Houston and Chicago Beans head to our website: www.cbc.ca/aih.

[Music: Oboes]

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Part 2: Jury Selection Challenges, Ohio Fertility Clinic

Jury Selection Challenges

Guest: Solomon Friedman

ATW: When Gerald Stanley's trial began in January critics were unhappy with the makeup of the jury. Mr. Stanley, a white man, was charged with killing Colten Boushie, who was Cree. Mr. Stanley, of course, was found not guilty. Critics, including Colten Boushie’s family, have suggested that outcome could have been different if the jury had been more diverse. The jury appeared to be all white. Mr. Stanley's defense lawyer was able to achieve that makeup by using peremptory challenges, which allows lawyers to dismiss potential jurors for any reason. Now the Liberal Government has announced plans to do away with peremptory challenges, saying it will improve fairness in trials. But Solomon Friedman says it will do the opposite. Mr. Friedman is a criminal defense lawyer. We reached him in Ottawa.

CO: Mr. Friedman, it would be helpful if first of all you explain how peremptory challenges actually work.

SOLOMON FRIEDMAN: The peremptory challenge process allows both defense and Crown Counsel to challenge a number of jurors without offering any reason or justification.

CO: And what does that lead to? What's the purpose of that?

SF: The purpose for that is it allows counsel, although they may have limited information about jurors, to attempt to select a jury that is representative.

CO: So why do you disagree with the Government's proposal to get rid of them?

SF: You know, this proposal is really a cruel irony. It comes right on the heels of the Colten Boushie verdict, which of course led to great dissatisfaction. The irony is that very often in my experience defense counsel use peremptory challenges to ensure that the jury is actually representative of the community, because of course the jury pool itself, that is the people who juries are drawn from has been found to be, both by the Supreme Court and by independent reports, to be unrepresentative. That is overwhelmingly white, middle class and not representative of the accused person. So we use peremptory challenges to challenge individuals to get a more representative jury and we're losing that ability.

CO: Colten Boushie was the victim, he wasn't the accused. Gerald Stanley, a white man, was the accused in that trial. And he had appeared to have been an all-white jury. How is that fair?

SF: Well, the true issue is that Indigenous persons are tragically overrepresented in the justice system, and they're tragically overrepresented as accused persons. So you remove a protection because you don't like the outcome of a particular case, and the ripple effect of that is that for Indigenous persons who are before the courts when their liberty is in the balance, you don't want them judged by a jury that is not representative of them. The idea is to have a jury of your peers, that is a jury that may have the same life experiences or similar social experiences to you and be able to put themselves in your shoes and understand, not just in a legal way, but in a factual way, in order to return a true verdict. We're losing that with the end of peremptory challenges.

CO: The idea from this though, is that Colton Boushie was the one who was judged — his behaviour, the behaviour of his friends. In very many ways as so often is the case with Indigenous people who are the victims, is that he was his behaviour and he was the one who was on trial. That's why the argument has been that there would have been a more fair trial had there been Indigenous representation on that jury — and there wasn't.

SF: The jury system takes out, generally speaking, the political ideology or social ideology out of the process and allows a jury of one's peers to judge the facts dispassionately. Of course, the facts will always be the subject of debate. The defense will see it one way the Crown will see it another way. It's a fundamental pillar of our democracy. In fact, it is guaranteed by the Constitution to have a trial by jury for serious offenses. The question is, you want that trial to be as fair as possible. And there is no question that although in this case, of course, the victim was Aboriginal in the Boushie case. Aboriginal people are over incarcerated and they're overrepresented in the justice system and we're removing one tool that allows us to sort of have that balance. It's not just for Indigenous people. I know that peremptory challenges are used to attempt by defence counsel to get racialized people, minorities, disadvantaged people, socially and economically disadvantaged people, because they can often empathise with the plight of the accused.

CO: Can you give us an example of that an experience of yours?

SF: Sure and I say I have experience from the defense side and observing the Crown side of this. In the last major homicide trial I did, where my client was a racialized person, I know defence counsel was doing everything they could to get young racialized men particularly on that jury. And every single young black man was challenged using a peremptory challenge by Crown Counsel.

CO: This is the argument that Justice Iacobucci gave in his report about why that there were so few Indigenous people on juries. First of all, they have to come very long distances in order to be on such juries because of where their communities are, and that their experiences with the justice system have been negative. They don't trust the system. So this is behind a lot of it. So if it's so difficult already to get Indigenous people on juries or racialized people on juries, what do you suggest is the way in order to see more of them represented?

SF: Well, instead of turning to cheap political solutions like abolishing peremptory challenges, when as I said that will have the opposite effect. The solution is to implement the Iacobucci report, implement the descent of the Supreme Court that made it very clear this is a serious problem and requires serious resources. There needs to be intensive outreach to Aboriginal communities, both on a jury pool level, but also on a general level to ensure that you don't have these negative feelings and stereotypes persisting about the justice system. But that costs money and it's expensive. It's something that a majority of the Supreme Court was not willing to do, was not willing to force parliament to do that. What I cannot understand is why a party that drapes itself in the Charter of Rights and Freedoms didn't simply adopt the Iacobucci report or adopt the minority the Supreme Court and say we can do things better, it's going to cost money, it's going to take effort, but we are going to bring in the underrepresented communities into the jury system. Remember the government controls the jury roles. They select the jury. That's not something defence counsel does. Defence counsel only picks — helps to pick part of the ultimate 12. But in terms of the people who are coming into the system, that's the government responsibility and they have a responsibility to ensure that it's representative.

CO: Why can't it be both? I mean, isn't this a beginning that you get rid of the peremptory challenges but you also make it possible, you put up the resources to make more racialized people available to jury pools?

SF: The trouble with getting rid of the peremptory challenge is that it lacks the counterbalance. You see in other jurisdictions like the United States, they've struck a different bargain. They don't have in most places a peremptory challenge where you can challenge for no reason. But what they do have is called they call it voir dire, where you can question jurors, ask them about their experiences, their bias, their backgrounds, what they know about the case — very extensive questioning that really doesn't exist in Canada in a meaningful way. So it's one thing to get rid of the peremptory challenges if it doesn't make sense you don't have much information to work on, but you can't replace it with nothing.

CO: We'll leave it there. Mr. Friedman, thank you.

SF: My pleasure.

ATW: Solomon Friedman is a defense lawyer and managing partner at Edelson and Friedman LLP. He was in Ottawa.

[Music: Ambient Bass Tones]

Ohio Fertility Clinic

Guest: Amber Ash

ATW: There are a lot of things you want to hear from your fertility clinic — this isn't one of them. We are so sorry that our failures caused such a devastating loss for you. That's from a letter to patients sent by the University Hospitals in Cleveland this week. The letter addressed a storage tank failure at its fertility centre earlier this month. There was an unexpected temperature change, which the hospital says it is still investigating. But we already know that more than 4,000 eggs and embryos are likely unviable. Amber Ash and her husband Elliot Ash have embryos stored at the clinic. They say they've been told that their embryos are not viable — and they are among a number of couples pursuing legal action. We reached Amber Ash in Cleveland, Ohio.

CO: Amber, how did you first hear that there had been this malfunction at your fertility clinic?

AMBER ASH: I actually learned of the malfunction at our fertility clinic on Thursday March 8th. I was actually on a phone call with my mother who was watching a news story on her local news when she heard that the university hospital's fertility clinic had the freezer malfunction. So at that point I went on the Internet and confirmed on our local news outlets that this was occurring. And then at that point the next Friday, Friday March 9^th, I called the hotline that the hospital had set up where I was told by the nurse staffing the line that they did in fact know that my embryos were in the affected freezer and that they then set me up with a phone call with physicians on Saturday the 10^th. And that was the time where I was told by two different physicians at the fertility clinic that our embryos were not viable.

CO: And is this absolute confirmation — because there was some that they said they might be affected and we didn't know which ones — you know for a fact now that the two embryos you had at that clinic are not viable?

AA: Based on the most recent letter that we received this week, it did say that they feel the embryos and eggs in this storage freezer are not they are not viable.

CO: Amber, I'm so sorry.

AA: Thank you.

CO: How has this — how are you and your husband dealing with this?

AA: You know, it's been a challenge these past few weeks. It's really been a roller coaster of emotions — just complete and utter disbelief with the pure negligence and recklessness that has occurred. We've gone from feelings of loss and grief to anger, frustration. And it ranges. On any given day we can really have all those emotions, it’s just this rapid cycle of anger and sadness.

CO: Just tell us the story, because I know there is some background to how you ended up having the embryos at this clinic.

AA: Sure. In 2003, prior to my husband and I even knowing each other, he was diagnosed with a rare form of cancer called Ewing sarcoma. He was told that his chemotherapy regimen would likely live leave him infertile. So at that point he had talked with his medical team about banking his sperm for when he was older and would possibly desire to start a family. Fast forward to 2013, when we started having conversations about starting a family and he underwent testing which confirmed that he was in fact left infertile from his chemo. Then we started conversations with the fertility clinic to determine what our options would be. And that's when we decided that IVF was the only way that we could start a family.

CO: And you did start a family, didn't you? You have to have one child.

AA: Yes. We have a two-and-a-half-year-old son, Ethan.

CO: And what were you planning to do?

AA: You know, the goal has always been to give our son a biological sibling. So we, you know, of course this has changed our plans tremendously.

CO: And what have you told you? What did malfunction?

AA: So what we know is that the storage tank that was holding the affected embryos and eggs, we learned that the alarm system did not go off. Apparently the hospital is saying there were two alarms, one internal, a local alarm that went off — but I guess the external alarm from what we understand did not go off and that was the one that would alert the embryologists that there was a problem. So that ideally they would be able to get there and hopefully resolve the issue. We also have learned that for some time prior to this incident there was a problem with the automated refill or the automatic refill of the liquid nitrogen that keeps the embryos and eggs frozen. And apparently they had been, you know, dealing with those issues, it sounds like with the company or the maker of the freezer.

CO: So that's that, that's how they explained it?

AA: Yeah there was actually — that's not how they explained it. We've never actually gotten, you know, a verbal confirmation, but through the letters and then through the interviews that they had with the chairman of the fertility clinic this week. That's how they explained it.

CO: The letter that you and the others received that says, it was a long letter, but in part, “We are so sorry that our failures caused such a devastating loss for you.” What do you make of that apology?

AA: We're personally having a very tough time accepting that apology, especially as we are learning more, because it seems that the errors that occurred could have been prevented. Again, this wasn't just one bad day. This is a series of poor decisions. And, you know, it really impacted so many lives across northeast Ohio.

CO: And you decided to pursue legal action?

AA: We did. And we decided that with the first letter that came out several weeks ago, we decided pretty early we wanted to pursue legal action.

CO: Amber, I’m this has happened. I do appreciate you telling us this story though. Thank you.

AA: Thank you.

CO: Bye.

ATW: That was Amber Ash speaking to us from Cleveland, Ohio.

[Music: Steady Guitar Strums]

April Fool’s Day

ATW: No one knows how April Fool’s day began. And there are different opinions on whether it should end. And I don't just mean whether it ends at noon — I mean period. Every year companies and media outlets wait with delight to spring hilarious pranks on the public. And every year the public pastes on a strange smile emits a pained ‘Hey you got me,’ and waits patiently for the jokes to end. Now April Fool’s is still two days away, but I want you to know that As It Happens won't be participating this year. We're above that kind of manipulative silliness — and if we try to trick you it would shake your faith at us. I say this with confidence because when we tried to trick you — it did. Take for example our 2011 effort when we reported that Kate and Harry would be serving poutine as the official Canadian dish at the Royal Wedding — and that they were doing that because they'd read an article in The New Yorker in which Calvin Trillin had designated it as such. It was a stretch — but Carol's conversation with Mr. Trillin proved he was pretty limber.

SOUNDCLIP

CO: Mr. Trillin, are you aware that the office of royal protocol is designing this Canadian course for the wedding brunch based on your article?

CALVIN TRILLIN: Yeah, I was very honoured because I didn't know the Queen, I assume it's the Queen, read The New Yorker, let alone my article. So yes, obviously I was very pleased too of course.

CO: It’s doubtful that the Queen read it. I mean there are people, there is a royal protocol office probably it was a functionary within that office.

CT: I prefer to think it's the Queen at bedtime, switches on the lamp and just opens The New Yorker with great anticipation and gets to my article and says poutine, the national dish of Canada, why of course.

CO: Well it doesn't actually say that. The headline of your article is Funny Food: Is A National Joke Becoming A National Dish.

CT: Well I don't write the headlines.

CO: What exactly is the premise of your article?

CT: The premise of my article is that the poutine may have been caught becoming the national dish of Canada, and I believe the statistics that I quoted from The Globe and Mail survey was that more Canadians had eaten poutine than had been in the canoe or seen a moose.

CO: But you write in this that as a punch line poutine has a lot going for it.

CT: That's true.

CO: You describe the cheese curds used on the poutine as cheddar before the taste is added. These are not exactly flattering things that should be in the national food.

CT: Well, I meant it very nicely. Yeah, I think that the fact that the national food is poutine is something to be proud of, it's a nice hardy Canadian national dish. And you have to remember, I didn't choose it as the national dish. I’m a simple reporter. The Canadians chose it as a national dish.

CO: But now you have a Yankee suggesting the food that Canada will contribute to a royal wedding. I mean, can you just appreciate how Canadians might be a bit ticked off by this?

CT: Well, I think you're blaming the messenger, it's not my fault that Canadians like poutine more than they like food sophisticated people eat.

ATW: From April Fool's Day 2011. New Yorker writer Calvin Trillin speaking to Carol about poutine being served at the royal wedding. It wasn't — but it should have been. And this year we promise absolutely no such weird April Fool’s pranks on our Sunday broadcast. If you doubt me, tune in and find out. We've posted a few more past April Fool’s Day Pranks from As It Happens on our website: www.cbc.ca/aih.

[Music: Trance Bass]

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Part 3: Feature: "Yiddish Glory: The Lost Songs of World War II"

Yiddish Glory: The Lost Songs of World War II

Guest: Anna Shternshis

ATW: They tell stories of revenge, heartache and humour in the face of unbelievable circumstances. They are the songs written by Jewish people who were in the Soviet Union during the Second World War. And the music was believed to be lost. The songs were recorded by a team of Soviet Yiddish scholars who wanted to preserve the Jewish culture during the Holocaust. But after the war ended Soviet dictator Joseph Stalin became increasingly anti-Semitic. He ordered the arrest of the researchers and seized their work. Now for the first time those songs will be heard on a new album. It's all thanks to Anna Shternshis and a little luck. The album is called Yiddish Glory: The Lost songs of World War II. Anna Shternshis is a historian and professor of Yiddish Studies at the University of Toronto and she joined Carol in our Toronto studio.

CO: Anna, first of all welcome to As It Happens.

ANNA SHTERNSHIS: Thank you. It's such an honour to be here.

CO: It's great to have you in the studio. These songs, this production you have is so remarkable, but never could have happened if not for finding the actual songs. So just tell us how did you come about finding this material?

AS: So I was working on a book on the history of Yiddish culture in the Soviet Union during the Holocaust. And I went to Kiev to look for some materials and among things I was reading I stumbled upon this collection of Yiddish songs. Something seemed off about those songs, they were about Stalin, they were about fighting against Hitler they were about Central Asia. These were songs in Yiddish I've never seen before. Now it's not unusual for me to not recognize things and not to know things, but I've done some work in the past Yiddish songs of the Holocaust and I was familiar with collections from Warsaw Ghetto from Lodz Ghetto from Vilna Ghetto, from places where Jews the were during the war — most mostly died, but none of the songs looked similar. So then I contacted my colleague Dr. Bret Werb from the United States Holocaust Museum, he works as an ethnomusicologist, and I asked him what's with these songs. Why don’t I recognize a single one of them. And he says to me well you don't recognize a single one of them because they're unique. They have not been known before.

CO: But now not known before, was there any knowledge that there was a cache somewhere hidden that had been lost, perhaps lost forever? Was there some knowledge that there might be something like this?

AS: There was a knowledge that this ethnomusicologists named my Moisei Beregovsky conducted an extensive fieldwork during World War II in Ukraine and in other parts of the Soviet Union collecting Yiddish songs, we knew about that. We also knew that Beregovsky was arrested in 1950. And that his the materials were confiscated from him and never came back. So there was a consensus among historians that the collection existed but it's now lost. When I saw this text it turned out that they were not lost. They actually survived.

CO: And what did they look like? Are they typed up, are they written?

AS: So most of the stuff is handwritten on very bad paper. Some of it typed on a typewriter. The typewriter is also not great because the letter R and M were not typed very well so it's very pale and it's very hard to read. Also some documents looked like letters — and they were letters. And in fact this is the most astonishing part of that collection. These were letters written by Jewish Red Army soldiers during the war when they went through battles that they went through and they wrote songs about that in Yiddish and they wanted these songs somehow to reach Beregovsky, to reach someone. So they mailed them and those envelopes. And we have those letters. And the other part of those letters, it's even more heartbreaking, because they came from places where Jews lived under the occupation. And sometimes — they’re written 1942. In 1942 is the last year some Jews lived — most Jews in Ukraine were killed by the end of 1942. And we have songs written sometimes by children, sometimes by women from these places on pieces of paper. And I think what happened was that they crumpled this paper and just threw it somewhere hoping that even though they're going on the march somewhere, they know they're not coming back, but they're hoping maybe somebody will find that document. And astonishingly someone did, and someone mailed it to the right address during the war and these are the documents in that collection.

CO: When you found this, when you saw this and you suddenly really slowly began to realize what you had, what did you feel from that? What energy was coming from that archive?

AS: So you know it was a mix of emotions. At first when I was just trying to read the songs and I was recognizing things like I know Hitler is an idiot. The Germans are running away with their pants down, like that kind of stuff, I was laughing. And I don't know if it's the right the motion to talk about when you stumble across something like this, but you read the songs and start laughing because these are humorous songs. Then I started reflecting on it and then I was thinking it's quite a story that these people lived through what they lived through and they wrote humorous songs about this. But then when I started finding other things like a song recorded from a 10-year-old orphan who sings about losing his parents and never seeing them again, or a song written by a teenager in the ghetto who writes this song when his parents are killed. You know, it's just it's like it hits you in the head because you can relate to these children, you know, I have kids that age myself, and somehow it's no longer just the historical text but it's something personal, something that really speaks to you.

CO: And I'm going to get to how it ended up becoming this album called Yiddish Glory: The Lost Songs of World War II. And I think people are now wanting to hear something. So I want to play a bit of a song called Kazakhstan and maybe you can set that up for us.

AS: So this song was first recorded from an anonymous person, who was probably a refugee, a Polish-Jewish refugee who ended up in Kazakhstan. Now Kazakhstan is a republic in Central Asia, a part of the Soviet Union, and during the war it became this meeting place for Jews of all sorts of backgrounds. Some people were deported from eastern parts of Poland in 1939-1940 by Joseph Stalin. Some people, Soviet Jews, were evacuated to Kazakhstan when the war started in the Soviet Union in 1941. So they were actually brought there by trains as part of Soviet industry. And yet some other people were just Soviet Jewish gulag prisoners who were also there. So suddenly all these Jews found themselves in a place they know nothing about. They didn't have a real Jewish community before the war. And by 1945 they understood that this place, which was essentially a prison for them before, was the place where it gave them rescue. Let's hear a bit of Kazakhstan.

SOUNDCLIP

KAZAKHSTAN: SOPHIE MILMAN SINGING IN YIDDISH ACCOMPANIED BY PIANO AND TRUMPET

CO: That is just haunting. And she's singing about mountains, she's going to sing in a moment about Kazakhstan and the beauty and asking the mountains what do you want from me. How can we find a place where we are not hated? And that voice of course is Sophie Milman. For people who don't know, Juno award-winning singer. How did she get involved with this?

AS: So, Sophie Milman, many years ago was a student in my class on Soviet Jewish history and that's how I met her. And when when we decided to work on this project from this archive I called her and said “Sophie, would you be interested in singing this material?” So Sophie looked at that stuff, she was very busy at the time and we had a meeting and they told her the story of this material and I said to her “You know, there is a song about Kazakhstan and I don't know we don't have a tune for that yet because it came without the tune. And it's hard to make sense of it, it’s so long, it's all over the place,” and I said I don't know. And she said to me “You know, I really want to think about Kazakhstan because Kazakhstan is a very special place for my family history.” Her grandmother survived the war in Kazakhstan and her grandfather served as a Red Army soldier, not in Kazakhstan. So she said to me “I'm very busy. I don't know Yiddish, but I am really interested in this project because it actually talks about my history, the history of my family and also Canadian history.” A story of Russian speakers, of Russian Jews who now live in Canada and whose legacy and whose heritage is so rarely discussed in a meaningful way. So she felt that she could bring her talent to this and give voice to people who wrote the songs, people who collected the songs. And in some way even give voice to the histories of Russian Jews who live in Canada today. And that's why Kazakhstan became what it became — a song that really captivates you and the song that you can't stop hearing.

CO: And then this last the last part of it which we didn't hear just now but the words are, “Please be our welcome guest,” — this is Kazakhstan's speaking, “You are our brother dear Jew. Even though the enemy hates you so much you will be my beloved brother and our family.” So it ends on this note of joy. And of course Yiddish was the common language of all these different people who ended up there from all these different places where they were banished from or escaped escaped from. They had this common language of Yiddish.

AS: It was the language that Soviet Jews did not really use as much. In the 30s they were assimilating very quickly, so they used to speak Russian more. But they needed Yiddish in order to communicate of all these Polish Jews who were there. So in an unexpected way this whole Central Asia — Kazakhstan, Uzbekistan, Kyrgyzstan — all these places became centres of Yiddish culture, world Yiddish culture in 1943.

CO: You're listening to As It Happens. I have in studio with me Anna Shternshis and we're talking about this remarkable new album that she has been part of putting together because she discovered the songs. It's called Yiddish Glory: The Lost Songs of World War II. One of the things about them is that the songs didn't come with music. They came with lyrics. How did you find the tunes to put to it? How did you make those decisions?

AS: Right. So about 10 per cent of the songs came with some tunes and were very grateful for that. There was scribbled next to the actual lyrics, but the majority of them did not have any music. So I enlisted the help of a very talented musician, artist and composer Psoy Korolenko. He is a performer of Yiddish music, Soviet music, Russian music, mostly the music that he writes himself. But I approached him and I said, “Look here's these songs that are very Soviet. They're very pro-Stalin, nobody has ever heard them before, they’re in Yiddish and they have no tunes.” And I said to him, “I want to talk about the songs at the conference here in Toronto at U of T.” And I said that like it's kind of boring to just talk about songs. And he says to me “You know, if you want I can just write tunes for those that are missing them.” And I said “Really, write tunes the songs?” Like for me it's complete rocket science right. And then we looked at the texts together. I selected the ones that I thought interesting that he selected from those that I thought was interesting, those that would be interesting to the broader audience, because you know academics are the worst about deciding what's interesting to other people.

[LAUGHTER]

AS: So once we made those decisions he started looking at the texts. And sometimes he was able to recognize that this was a parody to an Yiddish existing song. Sometimes it was not clear what it was about. Reminded him of a Soviet song of that time, and something in the note said that people often use popular Soviet music. So with that information he approached the material and just used the leap of imagination in order to get that right. And once I found the tune actually after he did that and it turns out that he was right.

CO: Oh my gosh. I wait to hear another one. This is Yoshke from Odessa. We're going to listen to this first and get in and get you to tell us what it's about.

SOUNDCLIP

MAN SINGING IN YIDDISH ACCOMPANIED BY PIANO AND VIOLIN

CO: Tell us a bit about that.

AS: Sergei Erdenko is the vocalist here, but the tune was written by Mikhail Glinka a famous Russian composer of the 19th century.

CO: It’s Skylark?

AS: Exactly. The reason why Psoy decided to match it to Skylark was that that the song was extremely popular in Russia in the 30s. And there was a tenor named Sergei Lemeshev who was known as a Soviet sex symbol, like he was handsome and he sang that song that was a household name. And we thought about the person who is singing that song, Yoshke from Odessa the soldier who was fighting this horrible war.

CO: He's a Red Army soldier?

AS: Red Army soldier who is killing as many Germans as he can because they destroyed his family, his community, his everything that was important to him. He sings a song about that. And we were thinking about that Yoshke and we thought well he probably wanted to imagine himself as a Lemeshev singing that song.

CO: The words are very violent in this and they talk about — we heard a bit about just going after the Germans with a knife — but it becomes more intense bashing the fascists without care, not a bit of respect. Mutilated bodies fall to Earth, showing no mercy — that he gave Hitler a strong lesson to remember him by what. Why is it a number of the songs are like this is filled with this is violence towards the Germans? Tell us about the significance of that?

AS: This rage against the German army is the rage of a soldier fighting the war. We get that raw emotion only from materials, from songs like this written during the time of the war. Because once the war is over people start moving on, they start thinking about how they make sense of their lives now, and they talk about will remember what happened we should talk about what happened. But it's no longer about the violence because it's all about making peace and continuing. But when we look at the songs written in the 40s these Jews write about this and sing that right as they begin to find out about the destruction of their communities. Of 6 million Jews who were killed during the war, two-and-a-half million were killed in the Soviet Union. And the Red Army soldiers were the first ones to discover the scope of destruction. So they go to Ukraine, sometimes the places where they were from, they don't find a single Jew in them. And I think once we translate these words today, and we start looking at these materials today we start asking questions. These are too violent. But I think we owe it to the memory of these people and to our own history to know the songs and to know what it was like for them and to hear the songs in order to appreciate how awful the war is.

CO: It also counters that that collective image of Jews being helpless victims, that they were just marched into camps, that they couldn't resist — that there was a passivity to it. And this contradicts that image, it gives this ferocious fierceness to the soldiers who were fighting the Nazis.

AS: Right. And I'm so glad you're bringing it up because that image of Jews being led to slaughter, it's an image of after the war. They didn't know that this was going to be the story so during the war they are fighting against that and that's exactly what they want. They want revenge against those who killed after them.

CO: After war ended though, Joseph Stalin — and you mentioned there's a lot of pro-Stalin lyrics, but that didn't last, right, Stalin’s support of the Jews — and it got uglier and uglier. Did the scholars know when they were trying to get the songs out was their it was their knowledge of what had happened after Stalin?

AS: So the last song of the collection was recorded in 1947 and that is before Stalin turned against Jews. Stalin. who the songs glorified so vividly and so enthusiasticly, turned his head against Jews. And now these materials were seized and that Beregovsky was put on trial for that. I suspect, I don't know for sure, but this work during the war, some songs from the collection were used to accuse him of Jewish nationalism. In other words, even though there was a lot of Stalin in them, there was also a lot of unapologetic claim for revenge for Jews and also unapologetic claim to remember Jewish victims. And to us that doesn't sound like anything controversial. But at the time there was a discussion — and believe it or not it's still a discussion in today's Russia — whether one should remember Jewish victims of the war separately. In other words, is there a need to remember the Holocaust? And that in these songs, there's no question that Jews are being targeted and that was controversial for Stalin.

CO: I'm in studio with historian Anna Shternshis and we're talking about this album Yiddish Glory. And these are the stories of Soviet Jews during the Holocaust. And we're going to hear — this is the last one we're going to hear, Shelakhmones Hitlern — and did I get even close to getting that?

AS: Yes, Shelakhmones Hitlern.

SOUNDCLIP

MAN SINGING IN YIDDISH

CO: Sounds very playful, very playful but tell us what’s going on?

AS: So the song recites all the enemies of Jewish people that tried to kill them but ended up being dead instead. So one of the names cited there is Pavel Krushevan, who is an alleged author of this text called The Protocols of the Elders of Zion, which inspired actually a lot of violence against Jews. All these people promised to hang on a tree. And that's the reference to how Haman, an evil minister from Persia who conspired to kill Jews ended up — he was hanged on a tree. His death is celebrated during the holiday of Purim which just finished celebrating last month. Purim is a time for joy, for laughter.

CO: Of survival. This is a King who tried to exterminate them, as so many others have since, and they survived it gloriously.

AS: And, you know it's interesting about that because Soviet Jews by the time of 1945 were already non-religious like so they were not celebrating Purim. In fact, they didn't connect their Jewishness with Judaism at all. And somehow we see Purim coming back to the songs. And even the gravestones of Jews who were murdered or otherwise died during the war, they often put died from the hand of Hitler The Haman. And these names they used interchangeably. And again, we learned that only reading from the documents from the songs written during the time of war because later that reference goes away.

CO: I’ll read a bit of a translation that you’ve provided for that song, because you'll see how that contradicts with that sort of — almost like you want to tap your foot and dance. It’s saying you “You've burned my joyful home and disgraced my daughters. You’ve trampled my infants and sworn to get rid of me too. Your anger dreams are wild and silly. We are alive and we will survive no matter what. Your bleary end will be on Haman’s tree while the Jewish people live on and on. It's just a great song the way it ends. What did these songs mean for you Anna?

AS: Well, you know, first as any historian, I was very excited to find it because it was new. It seemed to me that they're going to rewrite the way we understand Jewish experience in the Soviet Union during World War II. I think it's going to make a difference in how we understand the history of the Holocaust in the Soviet Union. And I think one of the findings, for example, is that the fact that people are writing and singing songs about what they witnessed in Yiddish. Another academic finding was that, you know, I interviewed almost 500 Soviet-born Jews from my other book on the Soviet Jewish life under Stalin, and I was interested in music, I specifically asked them about songs that they remembered. Not a single person who I interviewed in Canada, in New York, in Germany and in Russia, could sing a single song about the war in Yiddish. Not one. So if we write history based only on those oral testimonies, and you know I interviewed 500 people a lot of people — and if not one of them remembers the song. Any responsible historian would say people didn't sing in Yiddish during the war because you know nobody remembers anything. Here we have this document that says well this wasn't true. So that's the academic finding. But the more personal fnding, and the more kind of connected to the significance of this material, I kept thinking about Moisei Beregovsky, this and ethnomusicologist who collected this music during the war. You know the war is going on, he doesn't know what's going to happen, if he's going to survive it, if his institute is going to survive, if his people are going to survive. And maybe something goes on in his head and says maybe you should be doing something else. Maybe you should be fighting in the army, or maybe you keep doing this. After the war all this is for nothing. The book never comes out. He goes to jail. He comes out from jail, he sits at home and his grand-daughter, who I spoke to lives in Ukraine now, she says to me she remembers how her grandmother, his wife was yelling at him for working because she says you just like to waste your time nobody will ever need that. And he sits and writes all that, no matter what he dies in the 60s and he thinks that he's done what he could for his archive. But he thinks that this part of his work is gone forever. I think it's important for me was the sense of this collegiality of this person I've never met, you know, who lived so long ago, who's dead and who's done such important work. And I think about this all the time. What does it all mean? All our academic research will anyone ever care? And it was important for me to bring that research, not just for the sake of relevance today, but also for the sake of honouring that scholar who lost so much because he persevered in doing this work and never got any recognition. But now his songs are here As It Happens and people are going to hear them from the radio. And somehow it comes back with the title of Yiddish Glory. And I think about that a lot and that's I think the significance, more personal significance of the project to me.

CO: I mean, you have done him a great service, but you have done an enormous service for all those people in the middle of horror and pain who had to write the song down and crumple it up and toss it over a fence, or mail it to somebody. All those people have done the service for. Anna it's such a pleasure to meet you and to hear this, thank you.

AS: It's so great to be here. Thank you so much for having me.

ATW: Anna Shternshis is a professor of Yiddish Studies at the University of Toronto. She was with Carol in our Toronto studio. To hear more from the album Yiddish Glory and to see photos head to our website: www.cbc.ca/aih.

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March 30, 2018 episode transcript

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