VANCOUVER EASTSIDE MISSING WOMEN
Robert Pickton murder trial changes course as defence calls witnesses
Sunday August 26, 2007
VANCOUVER (CP) - Whether jurors will hear Robert Pickton defend himself against accusations that he's Canada's worst serial killer could soon become clear after his defence lawyers begin laying out their case Monday.
Although Canadian law required the Crown to tell the defence team about each of the 98 witnesses called for the prosecution, no similar obligation exists for defence lawyers.
So it remains a mystery about whether Pickton will testify himself.
All defence lawyer Adrian Brooks has said is that the defence team is "confident and ready to go" and that their case will last about three weeks.
He gave no hint about how many witnesses his side would call or who they would be.
Pickton himself would be the most eagerly anticipated, but legal experts caution there are up-sides and down-sides to having an accused testify.
"The risk is putting your foot in your mouth while the (benefit) is that the jury wants to hear two sides of the story," said Alan Young, a law professor at Osgoode Hall in Toronto.
Jurors are always instructed by a judge not to draw any conclusions from an accused's decision not to testify.
If an accused does testify, there are three options for the judge's instructions to a jury.
"If he testifies and says he didn't do it, is it believable or not?" said Michael Mulligan, a Victoria defence lawyer who is not involved in the Pickton case.
If the jury finds an accused is not believable, they must still weigh the other evidence and decide whether the Crown has proved its case beyond a reasonable doubt.
Defence lawyers also can't allow an accused to testify and profess his innocence if he has previously told his lawyers that he is guilty.
"Lawyers can't assist a perjury," said Mulligan.
Mulligan noted the defence could also call so-called "alibi evidence."
In those cases, the judge must note for jurors that prosecutors and police haven't had time to investigate witnesses providing an alibi for an accused because they weren't told the witness was coming.
Jurors are instructed to weigh the witness's evidence with that in mind.
The Criminal Code does, however, obligate defence lawyers to notify the Crown if they'll be calling expert witnesses.
Crown spokesman Neil MacKenzie would neither confirm nor deny that the Crown has been informed of the defence's intention to call any expert witnesses in the Pickton case.
While the Crown's case took almost seven months and included 98 witnesses, Mulligan said the judge would also tell jurors that they are not to put any weight on the differences in the amount of time and number of witnesses called for each side.
Young concedes despite the judge's caution, there is a risk.
"The reality is a risk and a danger of a jury being overwhelmed by the size and not the quality (of the Crown's case)," said Young.
"And people forget that Pickton does not have to prove anything. He just has to cast doubt on the Crown's case."
The large defence team is led by Peter Ritchie, a well-known and highly regarded lawyer in Vancouver.
His partner, Marilyn Sandford, and other members of their firm, have been involved in the case virtually since Pickton's arrest in 2002.
Ritchie and Sandford, along with Richard Brooks and Victoria lawyer Adrian Brooks (no relation), have handled the bulk of the cross-examination.
Adrian Brooks has worked on more than two dozen murder cases and once represented Patrick Kelly, a convicted wife killer, former RCMP undercover officer and now an accused fraud artist.
He also represented Kelly Ellard in her first of three trials. Ellard was eventually convicted of murder in the death of Victoria teen Reena Virk.
Ritchie, a practising lawyer for more than three decades, has worked in civil and criminal matters and has been a defender and a prosecutor.
The Pickton case is certainly the biggest criminal case of his career but he is also remembered as the lead lawyer for Gillian Guess, who was a juror on a criminal trial and ended up having an affair with the accused.
She was later charged with obstruction of justice and Ritchie defended her. Guess was convicted.
In late 2005, Ritchie was named a Queen's Counsel, an honour bestowed on respected lawyers which allows them to add QC after their names.
Pickton, 57, was arrested in February 2002 and has been in custody ever since.
He was arrested as part of the missing women's joint task force, also known as Project Evenhanded, which investigated the disappearance of more than 60 women from the city's notorious Downtown Eastside.
He is charged with murder in the deaths of Marnie Frey, Georgina Papin, Brenda Wolfe, Sereena Abotsway, Mona Wilson and Andrea Joesbury.
He is also scheduled to be tried at a later date on 20 additional counts of first-degree murder.
The defence made an opening statement at the start of the trial in January - unusual in itself because defence lawyers don't traditionally give openings until their case starts.
Ritchie began by telling the jurors almost immediately that "the defence does not accept the Crown's case."
"The defence position in this trial is that Mr. Pickton did not kill or participate in the killing of the six women his is accused of murdering," Ritchie said in January.
The Crown delivered its case in three blocks: scientific evidence, including evidence recovered from the farm; statements Pickton made to police during his interrogation and to an undercover cell plant; and the civilian witnesses, who testified about what they had seen on the farm or heard from the accused.
"The defence wants you to know that there are very substantial issues relating to all three of these areas," Ritchie said at the time.
The defence also advised jurors in January that they should "pay particularly close attention to the evidence relating to (Pickton's) intellectual competence, and close attention to his level of understanding."
He may have hinted at some defence witnesses when he told the jury several months ago about the Crown's extensive DNA evidence.
"I would ask that when the Crown attempts to draw certain conclusions from DNA evidence, that you have patience with the manner in which that evidence unfolds," he said.
The jury, said Ritchie, should pay "close attention to where Mr. Pickton's DNA does not appear in relation to those exhibits (recovered from the property).
Finally, Ritchie told the jury then that they should not think of the property as a "quiet pastoral farm."
The property was instead a "busy hive of activity."
"Pay attention to . . . the number of people that go there; the identity of people that go to the property; people who have residence on the property and the type of activities and nature of activities that took place on the property."
Updated: August 21, 2016