Crown promises new Johnathan trial
Tale of brutality cost estimated $1M
For nearly three months, the murder trial had a city in its thrall.
It was a story of almost unbelievable brutality — the frenzied stabbing to death of a 12-year-old boy, tape-recorded evidence of the three accused killers plotting attacks, tales of vampirism, of blood, of hate, of teenage love.
At the core of it all, the teenage girl who appeared so cool and calm in the witness box, who brightly told of the phone call she got from one of the accused killers. She recounted how she had played along with the vampirism. Really, she said, she didn’t take any of that stuff seriously.
Then Tuesday night, one of the decade’s biggest trials turned into a train wreck. A newspaper story told how the teen, the prosecution’s star witness, had posted references to bloodlust and vampirism on the Internet. The judge reviewed the information — and declared a mistrial.
What went wrong?
Whose fault was it that an estimated $1 million of public money spent on the prosecution had been spent without a resolution?
Who hadn’t done his or her job?
While these questions were being pondered, prosecutors for the case defended their work, vowing that the accused killers will face a new trial for murder. And the teenage girl whose online musings sparked a mistrial will likely be a star witness once again, they said.
The girl, a “sterling person” who secretly recorded the accused youths apparently planning to kill the boy and his family, had as good as perjured herself, Justice David Watt said.
The defence had argued the recording was evidence of nothing more than a 16-year-old boy trying to impress his then-girlfriend, who he believed shared his obsession with vampirism.
The girl testified that she thought such ideas were childish. But on Tuesday the judge was shown a National Post report of the girl’s statements in an online forum — statements that appeared to contradict her sworn testimony. Watt saw no way to make jurors aware of the contradictions, so he aborted the first-degree murder trial.
There was speculation yesterday that the Crown might seek a plea bargain, its case weakened by revelations that the girl may have misled the youth court.
But Paul Culver, Crown attorney for the Toronto region, said the prosecution fully intends to retry the case. Prosecutor Hank Goody is expected to present this position when he and defence lawyers appear before the judge tomorrow morning.
Culver said he could not estimate when the second trial will begin. Defence lawyers believe it will be no sooner than the fall.
That leaves the question of what went wrong in the case, which included a lengthy police investigation, a two-week preliminary hearing and a three-month trial.
Defence lawyers say they did all they could to investigate the girl, even sending private investigators to interview her — but they were refused access.
They say they did not have the skills to find archived websites with evidence of her interest in vampirism, which contradicted her courtroom evidence.
Furthermore, two defence lawyers say, the Crown should have done more to check out its key witness, an assertion that Culver said he “totally rejects.”
“Unfortunately I can’t debate it right now,” Culver said, pointing out that the case is before the courts. “When all is said and done she was a witness to introduce a tape recording.”
Johnathan died on Nov. 25, 2003, the day his body was found with 71 stab, cut or hack wounds in the basement crawl space of his east Toronto home.
The brother, now 18, and two friends, now 16 and 17, have pleaded not guilty to first-degree murder in his death. The 17-year-old and Johnathan’s brother also pleaded not guilty to attempting to murder the boys’ stepfather as he returned home a short time later.
The girl and four girlfriends taped a phone call in which the boys bragged earlier that day of plans to kill Johnathan and his family members with “fists and knives” as they came home. No more than 40 minutes later, the slim, freckled boy was killed.
The tape became the centrepiece of the Crown case.
Johnathan’s brother has admitted through his lawyer Rob Nuttall to stabbing the boy to death with a kitchen knife — but in a sudden uncontrolled rage, which would make him guilty of manslaughter, not murder.
David McCaskill, lawyer for the now 16-year-old boy who has an admitted interest in auto-vampirism, and Dennis Lenzin, lawyer for the 17-year-old, described as shy and non-confrontational, argued their clients were no more than shocked spectators to the stabbing.
The tape recording was evidence of nothing more than the 16-year-old trying to impress his then-girlfriend. “Blood is on tap,” he boasted in the tape.
The girl testified she did not share his interest in vampires and thought it childish.
But the National Post story revealed she had posted a profile on a website for vampire enthusiasts, listing her interests as “blood,” “pain,” “cemeteries” and “knives.” She had also posted comments on the trial.
Defence lawyers noticed the material only after reporters awaiting a verdict brought it to their attention around 5 p.m. on Tuesday. The lawyers brought it to the judge shortly after.
Watt said it was with extreme reluctance that he declared a mistrial, with the jury in its second day of deliberations, but felt he had no alternative. One juror said he was disappointed. “It is a shame,” he said in an interview. “I wanted closure, I guess.”
At the girl’s home yesterday, her father told the Toronto Star’s Dale Anne Freed that the situation has taken a toll on the family. “It’s very difficult,” he said. Asked if he believed in his daughter, he said: “definitely.”
Teens at the girl’s Toronto high school defended her yesterday, suggesting she was simply trying on a different identity when she made the postings.
Assuming online personas that are wildly different from real-life personalities is common among teens, one student said. A professor who has researched adolescent personalities told the Star’s Jordan Heath-Rawlings such actions are typical adolescent “identity play.”
Lenzin said he has no doubt that having to declare a mistrial at the 11th hour “broke the heart” of the widely respected judge, who has tried some of Toronto’s most sensational murder cases. It is believed to be Watt’s first mistrial in at least 15 years, Lenzin said.
Nuttall said there was nothing defence lawyers could do if the five girls involved in the taped phone call refused to talk to their investigators. He said he asked the Crown to facilitate interviews, but was turned down.
“Did somebody screw up?” he asked. “The Crown attorney was duty bound to look into this girl’s background a little more completely,” he said, given the fact that he presented her to the trial “as a sterling person.” The defence relies on crown disclosure, Nuttall added.
Lenzin said police, who do investigations for the Crown, could do little if the girl did not tell them about the postings. “To some extent you have to trust them to tell you the truth.”
Lenzin said he ran the girl’s email address through a search engine last spring, but found nothing. “I’m no computer whiz, I’m a lawyer,” he said.
“I don’t think you can blame anyone in this case except the young woman who took the stand and said things that are inconsistent with what is on that site,” Lenzin said. “You can point fingers, but I think you start with her.”
She gave two police statements under oath, and testified both at the preliminary hearing and the trial without mentioning any interest in vampirism, he said.
To avoid such a mistrial in the future, the police could conduct more thorough background checks of Crown witnesses, but that could become onerous, Lenzin said. “There are some things you can’t protect yourself against.”
McCaskill said the defence lawyers don’t have the same computer skills as younger people, which might partially explain why they missed the posts.
But the police have the skills to do sophisticated Internet searches, which they have amply demonstrated in their hunt for child pornographers, he said.
“The Crown has a significant responsibility that they don’t put up lying witnesses,” he said. “You’ve got to look to the Crown’s office and say to them, `What sort of testing do you do? What sort of background check do you do to make sure you’re giving us the real goods?'”
Crown witnesses carry a lot of weight with juries, he said. “There is an implied reliance.”
Culver countered that he is not sure what more background checks the Crown could do. “Credibility is an issue in every trial. And that’s what the jury is for,” the Crown attorney said.
McCaskill said he is considering seeking bail for his client. Nuttall said he will not; Lenzin said no decision has been made.
McCaskill said his client is disappointed with the mistrial, because he was anxious for a result, but realizes the new evidence about his ex-girlfriend may save him years behind bars.
The boy’s father wants his son to seek bail and is cautiously optimistic about a new trial.
His son “is going to get an opportunity to let his portion of the story have a little more impact and have a little more truth revealed … and a little more emphasis on his non-participation.”
Watt said on Tuesday, “sitting here for next to two decades, I must say nothing surprises me.”
Feb. 17, 2005
Peter Small, Staff Reporter