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Judge forced to toss rape case

Blames officer's conduct as key evidence tainted

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A Manitoba judge is blaming police misconduct for sinking what prosecutors believed was a strong case against an alleged high-risk Winnipeg rapist who is now back on the streets.

All of the key evidence against the accused, Marcus Baird, was tossed out of court recently after the lead officer involved in the case was found to have deliberately committed numerous charter breaches.

'Misstatements, embellishments'

In his ruling, Heinrichs made the following findings against the police officer, Det. Richard Arndt:

Arndt failed to tell the magistrate one of the female victims described her attacker as "white" and later "Caucasian." Baird is black. Arndt was grilled on the witness stand as to why he omitted this information. His response was simply "I can't explain it." "The court must conclude there was nothing accidental about this omission," said Heinrichs.

  • Arndt specifically told the magistrate they had a DNA match to Baird based on a sample collected from a piece of clothing at the scene. That was not true. The DNA analysis only said the clothing contained male DNA. At least one other officer had told Arndt not to specifically state it was a match to Baird.
  • Arndt specifically told the magistrate they would find a black cotton hoodie and black jeans inside Baird's vehicle, which were visible through the window and matched the clothing worn by the attacker. In fact, those specific items weren't inside the car.
  • Arndt failed to tell the magistrate police had previously attempted to get a warrant to search Baird's house in relation to the investigation, but were denied on the basis of a lack of sufficient grounds.
  • Arndt brought up details of the mid-April sex assaults Baird was charged with and made it sound as if Baird had already been convicted of them. In fact, he was pending on the charges at the time and later acquitted due to a lack of evidence.
  • Arndt changed the wording of one of the officer's reports about Baird's vehicle being "warm" to the touch shortly after one of the rapes occurred and while police were conducting surveillance on him. In the claim to the magistrate, Arndt claimed the car was "hot" to the touch, a "deliberate exaggeration" Heinrichs said was done to sound more convincing.
  • Arndt told the magistrate the tires on Baird's car "appeared to match" tread marks left at the scene of one of the crimes. In fact, Arndt has no expertise on analyzing tread marks and failed to disclose this. Police later ruled the tire marks were not a match.

Provincial court Judge Robert Heinrichs slammed the conduct of Det. Richard Arndt while ruling on a pre-trial motion last month, of which the Free Press has now obtained a transcript.

"This court has found that there was reckless disregard for the truth in Detective Arndt's sworn application. The inaccuracies, misstatements, embellishments and exaggerations are such that they permeate the entirety of the document," Heinrichs wrote in his decision.

The Crown conceded Arndt made numerous factual errors in his information to obtain a search warrant but claimed they were all "honest mistakes" that should be overlooked.

Heinrichs disagreed, saying this was done maliciously by the officer.

"It can be fairly characterized as an attempt to trick the reader into drawing a conclusion that simply would not have been there if there had been full, fair and frank disclosure," Heinrichs said.

Specifically, the judge ruled Arndt deliberately withheld certain information, while exaggerating other details, in order to convince a magistrate to issue the all-important search warrant in the Baird investigation. The end result was making the police case look much stronger than it really was, he said.

"All uncertainties or contradictions had been removed from the picture Detective Arndt created," Heinrichs wrote.

As a result of the deception, Heinrichs deemed this "an unreasonable search and seizure" that left the Crown with no evidence left to proceed. A stay of proceedings was formally entered earlier this month. Baird, 28, was accused of breaking into two residences and sexually assaulting two women, both strangers, on April 4 and 5, 2011. Police and the Crown also suspected him of voyeurism for recording the incidents on camera.

Sources told the Free Press justice officials were considering a dangerous-offender application for Baird if convicted on the grounds he poses an extreme risk to public safety. That would have allowed him to be jailed indefinitely with no guarantee of ever being released.

Now he is a free man following the judicial ruling.

Baird has a lengthy history with police and was the subject of regular surveillance at the time of the attacks, court was told. He was identified as a suspect but not arrested for these incidents until July 2011.

However, Baird was picked up in mid-April 2011 for two other alleged sex assaults of young sex-trade workers. His car was impounded and held at the Public Safety Building while he was held in custody without bail.

After identifying him as a suspect in the two earlier home invasion rapes, police applied for the warrant to search Baird's seized vehicle and obtained several pieces of evidence that were key to their prosecution, including clothing and video equipment, according to testimony at the voir dire.

A Winnipeg police spokesman told the Free Press Tuesday they are aware of the judicial decision and are reviewing it with their "justice partners." The Crown has 30 days to decide whether it wishes to file an appeal. "This was a complicated investigation that involved multiple incidents and we are confident that this review will provide valuable insights for the future," Const. Jason Michalyshen said in a statement.

Republished from the Winnipeg Free Press print edition February 26, 2014 A3

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