Twists, turns filled court case

Hey there, time traveller!
This article was published 10/12/2008 (6113 days ago), so information in it may no longer be current.

The prosecutor says they were a united front when it came to killing Phoenix Sinclair — but Samantha Kematch and Karl McKay were clearly at odds in defending themselves in court.

Dramatic twists and legal strategies involving the two accused that played out in the absence of the jury could mean a date with the Court of Appeal. The developments can only be reported now for the first time because jurors are sequestered.

Kematch’s lawyers announced on the first day of the trial that they planned to put forward a defence of “duress” — essentially claiming McKay was an abusive monster who forced her to attack her own daughter and prevented her from getting help for the girl. They told Queen’s Bench Justice Karen Simonsen their client would likely take the witness stand and detail a litany of horrors she allegedly suffered at the hands of McKay.

Simonsen agreed Kematch’s lawyers could introduce some evidence of “bad character” against McKay, including mentioning his criminal record and questioning his former wife about prior abuse. That prompted an immediate motion by McKay’s lawyers to have separate trials. They claimed McKay’s right to a fair trial was being poisoned by Kematch. The judge denied the motion.

McKay’s lawyers were clearly angry weeks later when Kematch’s lawyers announced they would no longer pursue the duress defence or have their client give evidence. The move will likely be a key point of an expected appeal if McKay is convicted of first-degree murder.

Neither accused ended up testifying, preferring to let their lawyers do the verbal finger-pointing on their behalf during closing arguments last week.

Kematch’s lawyer, Sarah Inness, admitted to jurors her client doesn’t deserve any sympathy. But she argued McKay was the one who delivered the fatal blows and then orchestrated the coverup that resulted in Phoenix’s death remaining a secret for nine months.

“There are many things that she should have done and should not have done. She treated her daughter terribly. But she did not kill her,” Inness said. She called McKay a “violent man who ruled the home with an iron fist” and clearly hated Phoenix because she wasn’t his biological child.

McKay’s lawyer, Mike Cook, fired back, suggesting Kematch was the true killer and the one who manipulated McKay.

“This is not some wallflower type of woman who was intimidated and dominated by Mr. McKay. Ms. Kematch was the dominant force in that house,” Cook said. “She is most definitely the type who could kill, and did kill, her child. A callous woman who cares nothing about her child. That woman is a cold-hearted woman.”

The Crown also limited how much jurors heard about Child and Family Services involvement in the Phoenix case. No CFS workers were called to testify and jurors did not hear any specific details about a March 2005 tip that led a CFS worker to check on Phoenix’s well-being, only to be rejected by Kematch at the front door of her home. Phoenix’s case file was then inexplicably closed with no further followup.

“We didn’t want to turn this into a three-ring circus,” a justice source told the Free Press, adding the CFS issue was not necessary to prove the guilt or innocence of McKay and Kematch. He said CFS’s role in the tragedy will likely be a major focus at the provincial inquest expected to be called in this case.

Simonsen also rejected the media’s bid to get access to all the audio and videotaped interviews of McKay and Kematch once they were shown to jurors, including McKay’s re-enactment of how he buried Phoenix’s body.

Despite no objections from Kematch or McKay’s lawyers, Simonsen ruled a fair trial might be compromised by excessive media playing of the tapes. However, she agreed to revisit the issue once jury deliberations began. Media lawyers will return to court Wednesday morning in an attempt to gain public access to the exhibits.

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