Winnipeg Free Press - PRINT EDITION

New trial ordered in killing

Jury should have been told of false-confession claim: ruling

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How Michael Lynn Pearce wound up arrested, prosecuted and convicted for killing his friend and occasional lover has never been short on intrigue and complex nuance.

And now, his case has seen another dramatic twist as Manitoba's top court on Thursday granted the 46-year-old a new trial, ruling final instructions given by a judge to the jury that convicted him of manslaughter were lacking and blocked him from getting a fair hearing.

"What was an otherwise well-crafted charge to the jury was not adequate in the circumstances because it failed to caution the jury about the phenomenon of false confessions which was necessary for the appellant to have a fair trial," Justice Chris Mainella wrote on behalf of the Court of Appeal.

The confession Winnipeg police obtained in Pearce's case in July 2007 was the only evidence against him in connection with the killing of Stuart Mark, 36. Police and the Crown alleged Pearce flew into a rage and killed Mark after learning he had HIV/AIDS.

Mark was found brutally killed in his Alfred Avenue home many months earlier, on Jan. 17, 2007.

The case went cold despite police twice issuing pleas to the public for clues.

Pearce approached police to offer them his help on July 8, 2007. After doing a ride-along with detectives, the information he provided was deemed unhelpful. Two days later, he voluntarily took a polygraph test and was sent on his way after the examiner found he had nothing to do with the killing.

During this process, he heard about a range of possible murder weapons, including golf clubs.

Five days later, Pearce again returned to talk with police. They were reluctant to talk further with him but agreed after Pearce insisted.

Less than an hour later -- after an exchange with officers not recorded verbatim -- Pearce was placed under arrest for Mark's murder.

He'd provided, said police and prosecutors, details of the crime only the killer would know, including marking on a diagram the exact spot Mark had been found in the home.

He then gave a videotaped statement in which he says he may have struck Mark after an argument.

"After being pressed to search his memory without making anything up, he admitted to swinging a golf club at the deceased. He said little more except than the golf club was an iron and he hit the deceased on the head with it," Mainella said in his review of the evidence.

Pearce testified in his own defence at trial in 2012. He denied any involvement and said police "coaxed" a confession out of him while in a vulnerable mental state after a very recent suicide attempt.

"He said the officers' questioning pushed him into making a false confession to a crime he did not commit," wrote Mainella.

Pearce's defence team was blocked from presenting expert-opinion evidence which cast serious doubt on the reliability of the confession. Mainella took no issue with Court of Queen's Bench Justice Shawn Greenberg's reasons for doing this. But because there existed an "air of reality" to Pearce's claim the confession was false, she was obliged to instruct the jury about the issue, stated Mainella.

"When a claim of a false confession does have an air of reality, in addition to outlining the theory of the defence to the jury, the trial judge is required to relate the essential evidence to the claim of false confession so the jurors may appreciate the value and effect of that evidence in arriving at a just conclusion," he wrote.

Because that didn't happen, Pearce's trial was unfair, Mainella said.

"A caution about the phenomenon of false confessions in the circumstances of this one issue case was mandatory; its omission from the jury charge amounts to a legal error," he stated.

Pearce remains on bail as the Manitoba Prosecution Service determines its next move.

It must now decide whether to hold a new trial, appeal Mainella's decision to the Supreme Court of Canada or drop Pearce's case.

james.turner@freepress.mb.ca

 

Republished from the Winnipeg Free Press print edition July 18, 2014 B1

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