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The Dennis Oland murder verdict was thrown out thanks to an illogical legal theory that’s been sowing confusion in Canada’s courts for decades It was a murder case that had Maritimers fixated. Dennis Oland, whose wealthy family founded Moosehead brewing, … Continue reading
I am regularly asked for updates on the Laura Babcock murder trial. It is still set for this fall and looks highly unlikely to be postponed as it was already bumped from February of this year
There are pre-trial motions scheduled for August 28th. While the pre-trial motions in this and all other cases are typically subject to a publication ban, the public can attend and they are often very interesting.
And that’s really all I can tell you at this point.
Part 1 of this story can be found here
Steve Paulsson launched his libel suit in 2006, just before the two-year filing deadline. He chose Ontario as the venue because he was resident in Toronto at the time of publication of the review; the review was by way of the legal definition, published in Ontario; and it was Paulsson’s contention that his reputation suffered damages in Ontario. In 2009, the defendants, excluding Leo Cooper, successfully sought an order to suspend the suit arguing that Ontario did not meet the criteria that would it allow it to assume jurisdiction. The judge ruled in their favour, finding that there was not sufficient connection to Ontario and that, even if there were, it would not be the most convenient forum to hear the case.
In 2011, however, that decision was overruled by a three-judge appeal panel, which noted that the original motions judge had made errors of fact and failed to ask if Ontario was not a convenient forum to hear the case, was there a better one? “The record is clear that the defendants are from jurisdictions: Australia, New York, Massachusetts and Illinois,” the judgment read. “On the basis on witness availability and convenience alone, there is no other forum that is more convenient.” Paulsson’s case was back in play.
In the four years between that ruling and this trial, there were various discussions and two failed attempts at mediation took place. Now finally, in February 2015, Paulsson — or the Daawkter, as the defendants’ lawyer, Geoffrey Adair, likes to call him — is having his day, or, more accurately, two weeks in court.
Paulsson’s story is that Leo Cooper’s review painted him as anti-semite and an apologist for Poles looking to minimize their role in helping to exterminate European jews during World War II. The publication of Cooper’s review in a leading academic journal made him unhireable, he argues.
Adair’s position is that the review in question was legitimate criticism and, besides, Paulsson’s subsequent job-finding difficulties had nothing to do with it. The man is clearly very difficult, he sets out to show the jury time and time again. See for yourselves.
In a cross examination that lasts just a few hours (compared to Paulsson’s almost three-day-long examination in chief about which the plaintiff will later inform you himslef), Adair argues that Paulsson is quick to do unto others as he doesn’t want done unto him. He sets out to accomplish this without doing the kind of deep dive into academic disputes that might send the jury to sleep. He keeps things moving at a brisk pace, reeling off the various nasty comments Paulsson has made about his fellow scholars. Adair asks him about Havi Dreifuss, a young Israeli academic who wrote an unflattering review of Secret City in 2010.
“You called her a cut and paste historian (and said) everything she believes is plagiarized from someone.”
“I happen to believe she is not very competent,” answers Paulsson.
“Plagiarism,” says Adair pausing for effect. “Is there a more serious charge in academia?”
The jury appears unmoved and Adair shifts gears. “With negative reviews,” he says to Paulsson, “I’m going to suggest, you trashed (the reviewers) in the most heartless personal terms. You threatened to sue several of them.”
Even positive reviews never fully satisfied you, says Adair, suggesting that Paulsson always found something to pick a fight over. He quotes from an email the plaintiff sent in 2012 to University of Florida Professor Norman Goda, the organizer of a conference called “Rewriting the Jewish History of the Holocaust.” Paulsson had proposed himself as a speaker but was frustrated when he was politely turned down. “I spent 15 years researching and writing my book, put everything I had into it, and then a clique of rival authors set out to burn it — and largely succeeded,” he wrote. “The spider in the middle of web is Israel Gutman, to whom my book is enormously threatening.”
Adair places the email on his lectern. “Spider in the web,” he repeats “Why didn’t you tell me (Gutman) was at the centre of the problems?” The lawyer emphasizes that this feud began in 2003 before the Leo Cooper review had even been commissioned.
Sheepishly Paulsson confesses that by the time he wrote the 2012 email to Goda, alleging a smear campaign against him, he had grown a little paranoid. Gutman — an Israeli academic considered to be the leading expert on the Polish holocaust — had originally been a mentor of his, but things had changed after Paulsson discovered previously overlooked data and sources at the Ghetto Fighters’ House in the Western Galilee. Until his dying day, Paulsson tells the court, Gutman was deeply embarrassed by the fact he had overlooked this treasure trove right under his nose
“He stabbed me in the back,” Paulsson says, describing a 2003 conference in Haifa, where Gutman alluded to the statistics used in Secret City, telling the audience: “We have heard some exaggerated estimates here.”
Adair wonders how Paulsson can get so riled up about having his data critiqued when he’s done the exact same thing to others. As he strides across the courtroom, he opens Secret City to page 117 and reads Paulsson’s own words: “Despite the manifest absurdity of Waldemar Schön’s figures…”
Paulsson interrupts: “Waldemar Schön was a Nazi official not a historian.”
“Oops,” I think, but, given that there are no startled gasps, I can’t tell if anyone else in the courtroom has picked up on Adair’s goof. When the defence lawyer quickly changes the subject, I wonder if he himself is even aware of his misstep or if he’s just keeping things moving as the minutes tick by before our Friday afternoon lunch break. I never do find out.
Apart from himself, Paulsson calls just one other witness during the trial, Ivor Gottschalk, a forensic accountant whose specialty is calculating loss of incomes in disputes. For this case, he was requested to project earnings based on Paulsson, who is 68 at the time of the trial, being hired on for a tenured teaching position in 2006. To estimate what his salary would have been, Gottschalk began by looking at other winners of the Orbis prize and where they were employed. He discovered an illustrious group including two Harvard professors, a senior lecturer at King’s College in London, and an associate professor of intellectual history at Yale.
Gottschalk then proposed four scenarios based on these individuals and assuming that Paulsson would have followed a similar career path had it not been for the Slavic Review. The accountant checked university and Statistics Canada research on salaries, factored in pension income based on a retirement age of 69, considered mortality tables and Canada/U.S. foreign exchange rates, and multiplied at some point by a factor of 12.56662 although my notes do not make it clear where exactly this figure came from. In the end it was determined that Paulsson could have lost more than one million dollars of income.
Adair has agreed not to dispute any of the figures in Gottschalk’s report and, as a result, his cross examination lasts mere minutes. “No disrespect to your qualifications,” he says to the accountant and expert witness, “but you have no personal knowledge of whether Dr. Paulsson would have received such a role? You’re not in a position to comment on how Orbis prize winners’ qualifications stack up against his?”
“No,” admits the witness.
“With respect to other winners of the Orbis prize, did you have any knowledge of whether they already had their tenure track positions?”
“Thank you sir, those are all my questions.”
With that, he plaintiff’s case has come to an end.
The following day, Adair makes what’s known as a non-suit motion. This is application by a defendant, usually made at the end of the plaintiff’s case, asking the judge to rule that that the plaintiff has not and cannot prove its case. In this trial, that would mean that there is no basis for the jury to rule that Paulsson has been defamed, that the words written about him by Leo Cooper were defamatory.
After hearing arguments on both sides of the issue, Justice Wilson decides that it is not unfeasible that a jury could rule in the plaintiff’s favour. The trial goes ahead as Adair calls his two witnesses – Diane Koenker, whose testimony was discussed in Part 1, and James Grossman, executive Director of the American Historical Association, PhD, University of California, Berkeley (1982). Qualified as an expert witness, he has flown up from Washington, D.C. to discuss the state of the job market for history professors.
“We were told at Berkeley that our prospects were dim at best,” he tells the court. “There are often 50, 60, 70 applicants for every job.” Grossman’s message is that — contrary to Paulsson’s claims that his book, before the bad review, guaranteed that a plum tenured job would be his — this was absolutely not the case.
Grossman puts it in terms he believes the jury will find more relatable. He asks them to consider the NHL and the NFL, noting there’s a cumulative effect. “If you don’t make it the year you’re drafted, you’re facing next year’s draft,” he explains. ‘If it goes on too long, then people tend to become less competitive.” All this is designed to drum home the point that Paulsson was still not in a tenure-track position in 2004, six years after his PhD was awarded. “Once you’ve gone beyond four years, it becomes very difficult to escape Never Never Land.”
Adair steers his witness from the general state of the job market to the specific, asking Grossman if there are “any issues with Dr. Paulsson.”
“Well, we tell students the letter of application should be one page. Anything more than two pages, the eye-rolling begins. Dr. Paulsson’s letter is four pages. The impression you get is this guy can’t speak succinctly. This is someone who goes on and on. That’s going to raise a red flag.”
Adair inquires about Paulsson’s CV, which Grossman describes variously as being “padded” and containing “a little bit of bloat.”
“Excuse me,” Dr. Paulsson says to Justice Wilson, “Can I interrupt for a second?”
No, she replies, that’s what cross examination is for.
At Adair’s request, Grossman continues to detail the flaws in Paulsson’s CV. The Fraenkel Prize, which Paulsson won for his PhD thesis, is “described in excessive detail.” Paulsson named all the conferences he’s attended as opposed to just those he’s spoken at. “Going requires requesting an application and writing a cheque. These are what I would describe as yellow flags, eyebrow raisers. You ask, ‘Is this someone who pumps themselves up, goes on at length?’”
The subject of the Cooper review is raised. Adair wants to know how it might affect Paulsson’s job prospects.
“Any search committee is going to recognize (Holocaust studies) is a fraught field,” says Grossman. “People argue with each other quite violently — metaphorically.” As for the review in question, he believes that it undermined itself, that a smart reader would see that Cooper had an axe to grind and was being unfair.
“How does an editor determine the cutoff line?” asks Adair as he brings his questioning to a close.
“You have to go pretty far to cross the bar of ‘we’re not going to publish this.’ The most important bar is what we call ad hominem,” says Grossman. “That’s the line not to cross.”
Paulsson begins his cross examination by pointing out that his PhD is from Oxford and much of his academic work is European. He wonders aloud how much Grossman knows about the non-US job market and if he is aware of the fact that Timothy Garton Ash, a well known professor of European Studies at St. Antony’s College, Oxford, doesn’t even have his doctorate.
“Your Honour,” objects Adair. “He’s here to ask questions not to give long speeches and buttress his credentials.”
Paulsson shifts tracks, taking up the issue of his cover letter with Grossman, asking if, given his background, he didn’t need to explain more than the average US-minted academic.
“Possibly,” answers Grossman, while stressing that this should have been done succinctly.
“How did you arrive at the conclusion I was combative?” asks Paulsson.
“I read your response to book reviews. One response was longer than the review.”
Paulsson then brings up an email exchange he had about the review, which he considers reasonable and subdued. “Do you stick to your opinion I was being combative?” he asks Grossman
“Yes,” he says, adding that he advises students that in general it’s not in their interest to respond to negative reviews.
Paulsson points out that he was writing in an online journal where space was not an issue. “I suggest your opinion of this matter is a bit old school,” he tells Grossman, adding that the picture he has painted of academic life is far too rosy.
The two tangle some more. Finally, the expert witness says, “What I’m suggesting is that there are many reasons you didn’t get this job. The book review is not one of them.”
Grossman’s testimony finishes just before lunch. Minutes later, as I am carrying my courthouse cafeteria meal to an empty table, Professor Paulsson flags me down and invites me to join him and his friends Amanda and Mike, who have been regular spectators at the trial and who I have met in passing. That is very kind, I say, but they have to understand that I am a journalist and that if I sit with them, I will be able to write about everything they may say. I can’t agree to keep anything off the record. It’s just too tricky in a case like this. I won’t be offended if they say no and leave me to eat alone.
Much to my surprise, everyone agrees to my terms. Amanda explains she saw a video I had recently posted to YouTube of my Scottish Terrier trying to plow through the snow and decided if I love dogs I must be trustworthy. Adorable as Bridget the Scottie is, I don’t want Amanda to be misled. “Have you read The Journalist and the Murderer by Janet Malcolm?” I ask. “It’s a book about how reporters betray their subjects. They can’t help it. It’s the nature of the job.”
Amanda looks vaguely worried as I provide some background. Malcolm tells the story of Joe McGinniss, who was given exclusive access to Jeffrey MacDonald and his defence team during his 1979 trial for murdering his wife and two children. In Fatal Vision, the bestselling true crime book that chronicled that experience, McGinniss concludes that MacDonald, the subject he had befriended and in whom he had professed his faith, was indeed guilty. MacDonald, upset by the betrayal, then sues McGinness and, later on, McGinniss sues Malcolm. The whole thing dragged on for more than a decade and was a complete clusterfuck. Even minus a murder, I have zero desire to play Joe McGinniss to Paulsson’s Jeffrey MacDonald and his affable, aging hippy friends.
Before lifting my fork, I make it crystal clear to the trio I am not overall a fan of libel suits, I worry about the chilling effects, and I especially don’t like the fact that Paulsson’s suing the University of Illinois claiming it’s the de facto publisher of the Slavic Review, because if he wins universities may stop providing infrastructure to academic journals due to fear of lawsuits. That kind of result would not be a good thing for anyone in my opinion.
Paulsson protests that the Slavic Review had no business printing the dozens of reviews it did if it couldn’t edit them properly. It should have been given more staff and more funding, he says as Amanda nods sympathetically and helps clean some spilt beef stew off his tie. A trim pretty woman in her sixties, who favours artisanal jewelry and hangs her brightly patterned woolen socks over the boots she stores in a corner of the courtroom, Amanda is skipping her annual Cuban vacation to support Paulsson at this February trial. But despite her deep loyalty to her friend, she is not blind to some of the faults Professor Grossman has just pointed out. “Less is more,” she counsels Paulsson as he prepares for the afternoon session. It’s an axiom I will hear her repeat several more times over the next few days as she warns her friend not to ramble on.
MIke and Paulsson met back in high school where they were both members of the chess club. An illustrator by profession, he’s seen friends through libel suits before. He’s dressed for court in a black and red tie-dye sweater made by his sister. It goes surprisingly well with the smart houndstooth suit was won in a raffle at the nearby Kensington market.
I ask Paulsson what he makes of Adair. “He’s got a job to do,” he shrugs. Despite everything he’s gone through on the witness stand, Paulsson doesn’t seem to take any of it personally.
Amanda reveals that the friends have been discussing Adair’s hair.
“Oh wow,” I say confessing that for the three days I’ve sat directly behind the defence lawyer I too have been completely enthralled by his silver, white locks. Not quite feathered, not quite layered with an immaculate collar line. It’s hair that has to be seen to be believed. A Google image search does it no justice, which is why I have not included a photo.
“I’m hoping (Adair’s) hair works in my favour,” says Paulsson as he strokes his grey-fringed bald skull. “Have you noticed the men on the jury all have receding hairlines? I think they’ll identify with me.”
Even in the bleakest, most boring moments of this trial — and there have been no shortage of those — the male jurors’ hair was not something I had considered. I’d wondered what the jury made of Paulsson’s long rambling speeches and his unpressed, baggy blazer, which had ceased to fit him after his doctor put him on a strict post-heart-attack fitness regimen. Or whether they might be turned off by Adair’s hail-fellow-well-met manner, if he’d been a little too mean in his cross examination of Paulsson and caused some jurors to see him as a bully. But it had never once crossed my mind that the jury’s male majority might bond with the plaintiff over male pattern baldness.
As the four-men, two women jury file back into the courtroom after lunch, I scrutinize the men’s hairlines and see that Paulsson was right. Although I have been monitoring the jurors’ reactions throughout the trial, the only thing I can definitively say about their attitudes is that one juror seems a little more amused by the proceedings than the others. Apart from that, however, they are discreet as can be and follow the rules of the court, which do not allow for rollicking fits of laughter at unintentionally hilarious testimony. The jurors consult the documentation they are given, they dutifully pay attention and sometimes some of the them take notes. I would have been happy to put my legal fate in these good citizens’ hands but as the evidence part of the trial winds up, Adair announces that he wants to strike the jury, send them home right now, and have the case decided by Justice Wilson alone.
In Part 3, to be published next week, Steve Paulsson will explain why he believes he was defamed
Worried about a possible defamation suit, Slavic studies professors exchange unwittingly hilarious emails about the plaintiff, which are later revealed in court
(February 2015) Diane Koenker leaves her London Review of Books tote bag on the defence counsel’s table and takes her place on the witness stand. A no-nonsense woman, whose one concession to the beauty industry is revealed by the white roots of her short brown hair, Koenker is a Soviet and modern Russia specialist and the head of the history department at the University at Illinois at Urbana Champaign. She has travelled to Toronto to testify at this defamation trial because a decade ago she was the editor of the academic journal, Slavic Review. Under her leadership, it published a highly unflattering review of the book, Secret City: The Hidden Jews of Warsaw, 1940–1945 by Gunnar S. Paulsson, PhD.
Paulsson, a Toronto resident who made a mid-life career switch from the computer business into academia, believes that the Slavic Review’s critique torpedoed his chances of ever finding a tenured teaching position and caused him to become known as a crackpot and anti-semite. As soon as he read the review in the summer of 2004, he contacted Koenker to demand a retraction, an apology, and the commissioning of a replacement review. Although she eventually conceded that the disputed book review did indeed contain sloppy errors, Koenker would not offer Paulsson anything more than the standard 250-word reply in the letters column. After much back and forth, including one false promise of resolution, Paulsson threatened a libel suit. Recognizing the seriousness of the situation, Koenker alerted the members of her editorial board. Her warning email began:
The Slavic Review Editorial Board is scheduled to meet at the Boston Meeting of the AAASS on Sunday December 5, 10:15 am to 12:15 pm in the Salon 1 meeting room. Due to financial exigencies, there will be no refreshments. There is also relatively little urgent business with the exception of a small dark cloud on the horizon concerning a book review.
Padraic Kenney, a board member who now teaches at Indiana University, realized immediately that the unnamed book causing the problems had to be the recent winner of the Orbis Prize, awarded bi-annually by the Polish Studies Association, whose book prize committee he happened to chair. He asked Koenker if there was anything he could do to mediate and they agreed it might help if he tried to calm Paulsson down. Unfortunately, their plan backfired. “It’s getting worse,” wrote Kenney ten days later. “Just got an email from Paulsson, full of invective and clear legal threats. This guy is difficult.” Given that he would be presenting Paulsson with his Polish Studies book prize right before dashing off to the Slavic Review editorial board meeting, Kenney worried about potential awkwardness. “My toughest task that morning will be, I think, to disengage from him after awarding his prize … I am confident I will be able to make it to the meeting alone, but one never knows.”
As the conference drew nearer, board members vied to outdo each other with declarations of support for academic freedom of speech and advisories about the dangers of allowing unwanted guests to attend their get-together. “Dear Padraic,” wrote one distinguished chair-holding professor, “I suggest you use your charm and persuasive powers to convince Paulsson not to crash the board meeting.” To which Kenney responded: “I will escape the PSA meeting through a trapdoor in the ceiling emerging thru a heating duct — in disguise, of course, into the SR meeting.”
Finally, in the last of the editorial board’s pre-Boston communications, Koenker emailed everyone: “I’ve heard enough to confirm my own feeling that we should not set a precedent by by turning the board meeting into a public hearing. Should Dr. Paulsson follow Padraic through the ventilator shaft, I will ask him to leave, and if he does not, (I will) have the phone number of hotel security handy to have him removed.”
While Paulsson is not suing Koenker, his defamation lawsuit, which was eventually launched in 2006, names as defendants the Slavic Review; its publisher, the American Association for the Advancement of Slavic Studies; the University of Illinois, which hosted the journal and lessened Koenker’s teaching load so she could edit it; and the author of the book review, Leo Cooper, a 93-year-old survivor of the Warsaw Ghetto and an honorary faculty member at the University of Melbourne in Australia. Complicating matters further Cooper has declined to defend himself, meaning a default judgment against him is granted automatically. The University of Illinois and the Slavic Studies Association are represented by Geoffrey Adair, a top Toronto trial lawyer who has called Koenker to testify for the defence. The Slavic Review is not considered a legal entity.
Adair begins his questioning of Koenker, the second and last of the witnesses he calls during the trial, by eliciting biographical details designed to show the jury that she is an eminently reasonable and respectable woman. He notes in his big booming courtroom drawl that she is mentioned in Who’s Who and has just recently won the outstanding achievement award of the Association of Women in Slavic Studies. The long list of books Koenker’s edited and written includes Moscow Workers and the 1917 Revolution, Revolutions from the Russian Archives and, most recently, Club Red: Vacation, Travel and the Soviet Dream, published by Cornell University Press in 2013.
“What’s the theme of that book? What’s it all about?” asks Adair, who, throughout the trial, has cast himself in the role of interpreter to the jury of the strange and cutthroat customs of academia.
“It’s a study of Soviet vacation practices and tourism under socialism from the 1920s to the 1980s,” answers Koenker, warming to her subject matter. “There were two types of vacations. One was a health spa and the other was active tourism.”
“What does a book like that contribute for historians?” asks Adair, who could be either genuinely puzzled or faking it.
“It is trying to argue that there was a consumer society under socialism, that there was a particular set of practices and values, that it was driven by consumer demand and not just the regime.”
“I see,” says the lawyer, politely cutting his witness short and shifting topics before the jury’s attention wavers. He will spend the next hour or so skillfully guiding Koenker through a long series of questions about the operations of the Slavic Review and her handling of the dispute over the review of Paulsson’s book. Despite a bit of a bureaucratic streak, she comes across as a fair-minded and dedicated scholar who was truly worried about the dangerous precedent that would have been set had she withdrawn a negative book review.
In preparing for this trial and his cross examination of Koenker, Paulsson has studied up on courtroom technique even going so far as to read Geoffrey Adair’s book on the topic, On Trial – Advocacy Skills Law and Practice. Yet under the pressure of trial, he forgets what every casual Law and Order watcher knows: never ask a question in court if you don’t already know the answer. After meandering from subject to subject — touching upon Soviet propaganda and Dezinformatsiya, as he pronounces it with an authentic-sounding Slavic accent — Paulsson moves in for what he clearly hopes will be the killer question of his cross examination.
He asks Koenker how she would have felt if, back when she was a young, aspiring academic, a reviewer had characterized her first book as Stalinist propaganda. Although she’s paused warily before answering many of Paulsson’s previous questions, Koenker responds to this one without hesitation. Her second book, she says, almost a little bit triumphantly, “was reviewed in a very prominent literary journal, the Times literary Supplement, by a prominent historian, who accused me of inadvertently imbibing Marxist-Leninist propaganda.”
Paulsson is taken aback. “Inadvertently imbibing,” he mumbles to himself stalling for time and shuffling papers before opting to try a completely different tactic. “Diane Koenker is wearing a pink shirt,” he announces. “Is that an honest statement?” Given that the witness’s blouse is a colour I would describe as plum, I’m confused by what Paulsson’s trying to achieve, but Koenker doesn’t skip a beat. “That’s a factual statement,” she replies. “Honesty implies a value judgment.”
“Does it really?” asks Paulsson dramatically as he turns to look at the defence counsel. “Mr. Adair, is your client wearing a pink shirt?” Adair appears ready to raise an objection, but before he’s out of his chair, Madame Justice Darla Wilson, who has been extremely patient with Paulsson’s lack of familiarity with the law through a week of trial, interrupts. “Doctor,” she says firmly, “the purpose of cross examination is to ask the witness questions that are relevant to the issues and lawsuit.”
After many more such admonitions from the judge and objections from the defence, Paulsson finally winds up his cross examination back at the 2004 Boston conference. Although the Slavic Review’s editorial board affirmed the rightness of its previous position and decided to grant no concessions, both Koenker and Kenney left Boston cautiously optimistic that Paulsson might be prepared to let things drop. Kenney had gone out of his way to tell him how much he liked Secret City and that it was beneath him to get tangled up with Cooper in a petty dispute. Koenker learned that a former grad student of hers, who was interested in the Catholic church in Poland during the war, had met Paulsson at the book exhibits. “If he can establish a working relationship with Paulsson, this will also be helpful in conveying norms and ‘socializing’ him,” she wrote in a post-conference email to Kenney.
At the trial, Paulsson calls on Koenker to explain what exactly she meant by socialize, a term he finds patronizing. “I felt that he might help you understand the ways of American academia and why the response to a negative book review might be better pursued in a positive way,” she explains. Minutes later she steps down from the witness stand and is shepherded by Mr. Adair’s junior co-counsel, Jennifer King, into a taxi cab that takes her to the airport. Soon she will be back in the United States which, despite its legendary litigiousness, is a country where it is far more difficult to sue for libel than Canada or pretty much anywhere else in the world.
This trial took place in the winter of 2015. For reasons which I won’t get into yet, I am only publishing this article now, two and a half years later.
Part 2 of this series can be found here.
Part 3 will be published next week. Follow me on Twitter @AnnB03 to receive notification