Winnipeg Free Press - PRINT EDITION

Doubts dogged trial from start

'... We don't have a case that we can win'

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Mark Stobbe was found not guilty of murdering his wife, Beverly Rowbotham -- but well before the trial even began, several out-of-province prosecutors figured there wasn't even a case against him.

In fact, while they expressed suspicions, four Alberta-based Crowns didn't believe the evidence was strong enough to charge Stobbe with the slaying in the first place. At least that was their opinion after looking at the same evidence the jurors would see later during the two-month trial and testimony from more than 80 witnesses.

And the prosecutors would have recommended Manitoba not charge Stobbe because they believed RCMP investigators hadn't built a strong enough case. That explains why the murder case was in limbo for several years until a fifth Crown attorney -- this time in British Columbia -- reviewed the same evidence repackaged by the RCMP's cold case unit and recommended a charge of second-degree murder.

But we don't know why that Crown prosecutor recommended charging Stobbe, because a Manitoba judge was later told the lawyer is sick and can no longer give "meaningful information."

-- -- --

 

 

Even the Crown attorney prosecuting Stobbe admits the case against him is entirely circumstantial with no direct or eyewitness evidence.

There are only a few facts that are clear in the case.

Rowbotham was viciously attacked with a hatchet or axe in the backyard of her St. Andrews home on Oct. 25, 2000. Her body was put into the back seat of the family's Crown Victoria and driven to Selkirk where the car was abandoned.

A few hours later, the woman's body was discovered after Selkirk RCMP started looking for her after getting a phone call from a worried Stobbe.

But beyond that, even the Crown admits the rest of the evidence is all circumstantial.

Because Stobbe worked in a government department that would advise then-premier Gary Doer, the decision was made to hire an out-of-province prosecutor.

Alberta Crown attorney Gary McCuaig was hired by the Manitoba prosecutions branch to review the investigation on Nov. 14, 2000.

But less than a week later -- and less than a month after the slaying -- McCuaig surprised RCMP investigators when he told them "there was not enough evidence to arrest/charge Stobbe."

It wouldn't be the last time RCMP investigators were offered that recommendation.

 

 

In fact, McCuaig went even further by suggesting RCMP "shelve" the investigation for up to two months to see if anything else popped up.

"Members of the investigation team were shocked and dismayed that a senior Crown attorney would suggest: 1) that the investigation of Beverly Rowbotham's murder be shelved; and 2) that investigators take a wait-and-see approach in a homicide investigation," McCuaig wrote.

More than a year later, during a meeting that was taped between McCuaig and RCMP investigators on April 3, 2002, after he had again reviewed the investigation findings -- and in between had two other Alberta prosecutors review the material and agree with his opinion -- he again told them "there was not sufficient evidence for a reasonably likelihood of conviction."

"Here's my view: We can prove when this happened, how it happened and where it happened... but we can't prove who and we can't prove why. And I think those, in this case, are fatal.

"And I don't think we can say in the end that without a doubt someone else could not have done it."

McCuaig also told the RCMP some of the evidence they believed implicated Stobbe could be turned around by the defence to say an unknown assailant had killed the woman.

He said while RCMP believed two buttons found in the backyard must have come from clothes that Stobbe was wearing and had disposed of, it could also be argued they came from somebody else. Same with a footprint found on Rowbotham's hat in the car, but not matched to any footwear Stobbe had in the house.

Put those two pieces of evidence together, along with a sample of unknown male DNA found by police on her purse strap in the car and "you've got, you know, a nice big red herring for the court that there's somebody else that has had contact with her," McCuaig said.

"I think we have a pretty good case, but we don't have a case that we can win."

McCuaig said the only thing left for investigators would be to launch an undercover investigation against Stobbe "but that wouldn't work with this guy" at this time.

But RCMP investigators countered they believed only Stobbe could have committed the slaying because not only did they believe the evidence pointed toward him but also because of something that happened when they asked to search the house.

"All of a sudden (Stobbe's) demeanor changed," RCMP Corp. Jack Van Dam told McCuaig.

"Up until that point he seemed... like a victim should be acting. But then all of a sudden, when we came there to ask him for a search at his residence, then all of a sudden his demeanor... his expressions on his face... the tone of his voice, everything changed."

But the Crown countered even that argument was dampened because Stobbe had informed police he didn't want them to disturb his young children and he had already brought an officer inside to have dinner with the family.

As well, court documents showed that at the time, Stobbe even invited an officer to stay in the house overnight.

RCMP investigators not only disagreed with the Crown's opinion, they "remained firm in the belief that sufficient grounds existed to charge Stobbe," and they sent a letter to Manitoba Justice asking for another review.

In September 2002, assistant chief Crown prosecutor Larry Stein, of Alberta Justice, concluded his review writing "The suspect probably killed his wife and I am highly suspicious that he did, but without more evidence I am not satisfied we could prove it beyond a reasonable doubt."

And, once again looking at the RCMP's insistence Stobbe hadn't let them in the house to do a voluntary search, Stein responded: "What murderer would invite the police in to dine with them if there was a risk of uncovering incriminating evidence?

"The suspect's actions here are far too consistent with innocence."

Ken Tjosvold, Alberta's assistant deputy minister of justice, was the final word on the case, summing up all the reviews to date in a Sept. 10, 2002, letter to R. Embury, then Chief Superintendent of Manitoba RCMP, by saying: "We have at this point had four experienced prosecutors look at this case carefully.

"In my view, they have made a thorough assessment of the evidence in light of the proper charging standard."

 

-- -- --

But despite a lack of support from prosecutors, the RCMP kept working to have Stobbe charged.

A few years later, after the department's cold case unit reviewed the evidence again, RCMP asked Manitoba prosecutions to take another look.

Investigators claimed they had new evidence. But later, Stobbe's defence counsel, Tim Killeen, told Justice Chris Martin he couldn't find anything not already known in the days after Rowbotham's slaying in more than 20,000 pages of evidence disclosed to him.

Even Martin, in a pre-trial decision, pointed out that while RCMP continued investigating between 2002 and 2007, "their efforts did not result in new material evidence, but rather... considerable re-analysis of the evidence."

Stobbe was finally charged in May 2008, after a Crown attorney in British Columbia looked at the RCMP case, and his trial began in late January before a Court of Queen's Bench jury.

A spokeswoman for Manitoba Justice said the department would not comment on the advice given by any of the out-of-province prosecutors in connection to the Stobbe case.

Prosecutors in both Alberta and British Columbia could not be reached for comment.

kevin.rollason@freepress.mb.ca

 

A legal house of cards

HERE are some of the holes in the case and weaknesses of the investigation against Mark Stobbe, from an Aug. 9, 2002, letter from assistant chief Crown prosecutor Larry Stein of Alberta to Ken Tjosvold, Alberta's assistant deputy minister of justice:

1. There is no direct or eyewitness evidence.

2. Mark Stobbe's story that his wife, Beverly Rowbotham, went grocery shopping the night of her death -- just hours after spending more than $100 on food at a store -- is possible. "People forget grocery items. Indeed, a shopping list was found in her pant pocket at the autopsy."

3. Stobbe's claim he watched baseball on TV and phoned family members before lying down with his three-year-old son and falling asleep until hours later. It was later found there was a baseball game on TV and he did call relatives. "The version he has provided is plausible and the prosecution has no evidence whatsoever to refute his story however preposterous we may think it is... indeed the plausibility of his story... would tend to lead to a rational conclusion alternative to guilty."

4. Stobbe showed no signs of typical post-offence conduct including flight, destroying or attempting to destroy evidence, concocting a false alibi or lying or resisting arrest. "On the contrary, all of the evidence indicates that the person acted in a manner one might have expected to be consistent with an innocent person. He called the police, he remained at home, he attended his wife's funeral and he was available for investigative purposes." The Crown said an expert believed there should be more blood in the backyard, given Rowbotham's wounds, but even if you speculate someone cleaned up the crime scene, "there is no evidence whatsoever to prove (Stobbe) did it."

5. If Stobbe cleaned up the backyard, why didn't he clean up the garage? "It may be that he is not the killer or it may be he is, but didn't have time to clean it up... We have no evidence who cleaned up the scene and it would be speculative to suggest no one but the suspect did it."

6. Why didn't Stobbe hear his wife scream in the backyard? "There is no evidence that the victim in fact screamed. For all we know, she may have immediately been incapacitated, thereby preventing her from screaming.

7. Was Stobbe predisposed for violence? "To the contrary, by all accounts (Stobbe) and deceased were a loving and happy couple.

8. Nothing suggests Rowbotham was fearful of Stobbe. It "is consistent with death caused by some unknown person... the strength of this evidence is more harmful to the prosecution than helpful."

9. No relevant fingerprint evidence. He lived at the house and used the car.

10. Opportunity to kill Rowbotham. Stobbe was at home but "can it be proven he had exclusive opportunity? In my opinion no. The fatal attack took place outside where the public would have access. The matter would be entirely different if the attack occurred inside the home."

11. No murder weapon found. Without a weapon "the case is merely speculative on the issue of what it actually was. And without it, the suspect cannot be tied to the offence. Its absence is equally consistent with the suspect's story that someone else was the murderer."

12. Motive. "Proven absence of motive is an important factor supportive of innocence... there is no positive evidence the suspect had a motive to kill his wife... The suspect had a loving relationship with his wife, his children, no money problems, etc. Why would he need to kill his wife?"

13. No blood on Stobbe's clothing or anything inside the house. And the strongest DNA evidence, mixed blood from both Stobbe and Rowbotham on a refrigerator in the garage, can also be turned around. The blood on the fridge supports the theory Stobbe was bleeding when he brought Rowbotham into the garage, but "there is no evidence whatsoever that he was injured in any way when the police dealt with him... there is an equally consistent alternative explanation that it got there at some other time because there was no evidence of injury to the suspect upon police involvement."

14. Unknown male DNA on the strap of Rowbotham's purse. "This leaves open the possibility that the unknown male DNA was deposited by the actual killer in an attempt to take the deceased's purse."

15. Wiretap evidence. Nothing points to Stobbe.

 

Republished from the Winnipeg Free Press print edition March 30, 2012 A4

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