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Derksen Case: What's a Crown to do?

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It wouldn't surprise me one bit if you were to walk by and look up at the Woodsworth Building on Broadway this weekend you'd see lights on in the offices where the most senior Crown prosecutors toil.

'What should we do about the Grant case?,' I bet they're wondering, asking each other.

Because just how to proceed in the suddenly-reopened prosecution of Mark Edward Grant for the murder of Candace Derksen in 1984 is not a simple matter in 2013.

Nor will it be in 2015 or 2016, when it's more likely the case might get heard again if Manitoba Justice elects to retry him.

The case wasn't a simple one in 2007, when Grant was arrested — nor in 2011 when he was finally put on trial by jury, who convicted him of second-degree murder.

That alone was a head-scratcher, as Grant was tried for first-degree murder.

The Crown's theory was that Grant killed Derksen by unlawfully confining her in the shed where she was ultimately found frozen to death weeks after she disappeared. Killing someone in the course of confining them is considered first-degree murder (Phoenix Sinclair was an example, albeit factually very different, of this).

That the jury convicted Grant of second-degree murder puzzled many.

But their decision was the decision. And many thought that was the end of it. A little girl taken from the world in a horrific manner. The terror she must have felt. It chills me to this day.

But not everybody thought it was the end. Especially Saul Simmonds and Vanessa Gama, Grant's lawyers. Neither likely did Manitoba Justice either. An appeal was expected, and was filed in short order after Grant was sentenced to life with no chance at parole for 25 years in May 2011.

Strictly viewing the defence's appeal as an observer, it was nothing short of fascinating.

Mostly because Simmonds had commissioned a veteran former FBI forensic investigator, Dr. Bruce Budowle, to review the Crown's key evidence in the case: a mitochondrial DNA profile worked up from a microscopic amount of forensic material located on twine used to tie the little girl up. Budowle is a renowned genetics expert.

Budowle's review, along with that of other defence experts, one of whom testified at the trial, argued — credibly, I personally thought — that the work done by the private DNA lab police used to conduct the testing after reopening the Derksen case in 2006 was lacking. 

In any event, the defence asked the Court of Appeal to find the DNA evidence called by the Crown led to an unreasonable verdict.

While the court didn't find this was so, it made some observations about the DNA evidence which, seen in the light of the decisions Manitoba Justice must now make in the case, are likely giving prosecutors pause as they ponder next steps. 

Remember: This case is nearing 30 years old. There is no new forensic evidence to be had, one would reasonably think. When it comes to the DNA implication the Crown has against Grant, it is what it is.

And it's contentious, to say the least.

First: The appeals court found there were "concerns" with the verdict given the DNA evidence called by the Crown. That's serious.

Then: Consider what Justice Michel Monnin wrote when dismissing the defence's "unreasonable verdict" ground of the appeal — which related solely to the DNA and the so-called 'battle of experts' which the trial saw.

"There was evidence, if believed, and it was, on which a properly instructed jury could convict and just because I may view it differently, I cannot conclude that the jury's decision was unreasonable."

Yes, the court ultimately sides with the verdict in this instance. But for Monnin to obliquely signal that he himself views the DNA as lacking — could this be anything but a sign of potential trouble for the Crown down the road?

Budowle, the defence expert, didn't testify on Grant's behalf the first go-around. One would bet that he will at the next, should that happen.

It's not hard to project from this that what was a strenuous attack on a "crucial" element of the Crown's case (Monnin's word) would only get stronger at any retrial.

Looking at that through the Crown's lens, it seems to create a major issue. Perhaps not an insurmountable one, but it would give the defence yet another kick at the can both at trial and at the appeal stage following that, should a conviction result once again.

Then, there's the whole issue of the "boxcar phantom" defence Grant was barred from putting before the jury — a prohibition which the Appeals court found compromised his defence to the point his conviction should be overturned. No small thing. 

Simply put, the story goes like this, according to Monnin. 

"The accused contended that some nine months after the deceased was found, there was a strikingly similar event perpetrated on another girl... at a time when the accused was in custody. The police never arrested a suspect in connection with that event. It was argued before the judge that the modus operandi and other physical evidence suggested that the same person abducted both (the other girl) and Candace Derksen."

To corroborate the girl's (known only as P.W.'s) story were certain similarities between the two crime scenes, a statement from a now-deceased adult witness who found the girl and police reports about the "intensive" investigation into what happened.

And then this (also from the appeal decision):

"Finally, the judge heard testimony from P.W. herself.

P.W.'s evidence was problematic for two reasons, which might or might not be related to one another.  

Firstly, P.W.'s recollection of the events in 1985 was, to a certain degree, vague and seemed to contradict the statements that she had provided to the police at the time of the incident. She often indicated that she could not remember and that she had dreams and not real memories. When provided with an opportunity to review her 1985 statement during the course of her testimony, she declined. In her cross-examination, she agreed with a suggestion put to her by the Crown that the 1985 incident had never occurred.  

Secondly, P.W. was interviewed at her home by two police officers several days before she was scheduled to testify. It was a lengthy interview. A reading of the transcript of that interview indicates that despite persistent and unrelenting questioning by the police doubting the veracity of her story, she maintained that the abduction had occurred. Indeed, this prolonged and persistent questioning fairly raises the concern that the nature and manner of the inquiry may well have been the cause of her subsequent recantation. Furthermore, on the day that she was to testify, P.W., notwithstanding the fact that she was being called upon to testify by the accused and not the Crown, was brought to the courthouse by the same police officers who had interviewed her previously. When questioned about this, she testified that they gave her no option."

Trial Justice Glenn Joyal ruled the incident never happened after the woman came to court and testified to this.

Joyal thus barred Grant from putting any of the above before the jury for his defence, and so they heard not a word about it. This wasn't fair to Grant, Monnin wrote. All he needed to show was that there existed "some evidence" that there was an air of reality to the P.W. case. 

The question is now: Would he be able to put this up at any subsequent retrial? If yes, then maybe the Crown's going to run into some serious problems.

Does a more strenuous attack on the DNA and a potentially plausible third-party suspect defence bode well for the likelihood of another conviction beyond a reasonable doubt?

I keep wondering about this. I don't know.

The Crown can do three things. None of them seem particularly great or palatable options and the third seems unthinkable given the intense public interest in this case. 

  1. 1. Retry Grant for Derksen's murder, even in light of the above. Again try to get the third-party suspect "boxcar phantom" material kicked before the jury hears it and has to factor it into their decision.
  2. 2. Find an error in law in the appeal court's decision and fight to get it overturned by the Supreme Court of Canada.
  3. 3. Elect to drop the case on the basis there's no reasonable likelihood of conviction.

Which one they'll choose is anybody's guess. I don't envy them the task.

james.turner@freepress.mb.ca

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About James Turner

James Turner rejoined the Free Press as a justice-beat reporter in August 2013 after a number of years away working at other media outlets, including the Winnipeg Sun and CBC Manitoba.

A reporter in Winnipeg since 2005, he got his first taste of the justice beat as a former Free Press intern, then as the newspaper's police reporter from 2008-09.

Among the topics he's eager to cover are youth crime, street gangs, child-welfare and how the mental health and justice systems intersect.

An avid blogger and early adopter of Twitter, James (@heyjturner) loves to write long, much to the frustration of his editors.

He despises animal cruelty. He loves 80s music and his tubby labrador retriever.

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