‘I can’t breathe,’ the true story of a rape trial

OnTrialForRapeByAnnBrocklehurst

Read the first two chapters for free

Part 1: She Said
Part 2: Are You Sure?
Part 3: Can the Complainant Continue?
Part 4: The Facebook Test
Part 5: He Said
Part 6: “I’m Not a Rapist”
Part 7: Closing Arguments
Part 8: The Verdict

This is the story of a criminal rape trial that took place in December 2014. It happened in Toronto but the setting could have been almost any major city in North America — or, for that matter, Britain, Australia, New Zealand, pretty much anywhere that follows common law.

At the time of the alleged rape, the female accuser was seventeen years old, entering her final year of study at high school. The male defendant was a year older, a star athlete on his way to winning a scholarship to a US college. She had substantial credibility problems on the witness stand. His testimony seemed far more convincing — at least at first. But this was more than just a “she said, he said” — or, as it turned out, “she lied, he lied” — case. There was an element of physical evidence against him: bruises on her arms and legs. The judge had to decide if the totality of the prosecutor’s case against the defendant was enough to send him to jail, brand him a sexual offender, and destroy his promising future.

Despite its sensational nature, this was a case that never made headlines. What I observed during my reporting was the farthest thing from a Jian Ghomeshi courthouse scene, with mobs of press and police. I was the sole reporter at the superior court trial and, on most days, the only observer not directly related to the case. The mother and grandmother of the accused, who I will call Matthew for the sake of this true story, attended throughout the trial. The complainant, who will be known as Ava, was supported by a representative from victim services and the detective in charge of her case.

Ava’s family and Matthew’s father were not permitted in the courtroom as they were all considered to be potential witnesses. Matthew’s father, who never did end up testifying, was finally granted access for the closing arguments. I never saw Ava and her family again after their testimony was done.

Part 1: She said

From the very beginning, Ava (not her real name), who is the first witness and the key to the prosecution’s case, proves extremely agitated on the stand. Sharna Reid, an assistant Crown attorney, questions her in a low-key, matter-of-fact manner. Ava explains that she had dated the defendant, Matthew (not his real name), in the summer of 2012. But when Reid asks if they were still boyfriend and girlfriend in the early hours of that August 2 morning, when the alleged assault took place, she doesn’t reply. Reid rephrases the question.

“I can’t breathe,” Ava answers, in a voice that is barely audible. (A note to readers: all of the quotations from the trial that I provide in these reports are accurate, but they do not comprise a comprehensive transcript of the entire trial.)

Ontario Superior Court Justice Gary Trotter, who is perched above the witness, looks down and tells Ava kindly that she needs to relax: she is there to tell her story, and he is there to listen. Trotter asks if she wants a break. When she says yes, the court is recessed for ten minutes — or longer, if she needs it. He tells the Crown to call him back when they’re ready.

After Ava leaves the room, the judge turns to the defence lawyers, Carolyne Kerr and Gary Stortini. “I don’t want you to think I’m coddling the witness,” he says, explaining that he recently had called out another witness (in another trial) for what he felt were amateur theatrics.

This trial is taking place in December 2014, during a time when sexual assault is in the headlines almost daily. For one, there’s Jian Ghomeshi. Two, a steady stream of women are accusing Bill Cosby of drugging and sexually assaulting them. Meanwhile, Rolling Stone magazine’s sensational story about sexual assault at the University of Virginia, “A Rape on Campus,” is being debunked as shoddy journalism.

The accused is being tried by judge alone, with no jury. If the judge believes the defendant’s account of events, Matthew will be found not guilty. If the judge can’t decide who to believe, Matthew will be found not guilty. If the judge believes Ava’s story beyond a reasonable doubt, Matthew will be found guilty.

Half an hour later, when court resumes, Ava, although still visibly distraught, is able to answer the Crown’s pre-break question. In July, just two weeks before the alleged assault, she told Matthew that she just wanted to be friends. “For my birthday, he didn’t show up,” Ava says. “I took it as a sign I was wasting my time, [that it was time] to end it.”

The standard publication ban covering sexual assault cases prevents any mention of Ava’s name or any other details that may serve to identify her. But I can tell you that she is a fresh-faced and attractive teenager.

I also have made the decision not to identify Matthew. Nothing about this case has ever made the news. If he is found not guilty, he will walk away from all this without so much as a single Google mention about the charges he faced. That seems fair to me. I can tell you that Matthew is tall and dark, the physical opposite of Ava in these respects. His scholarship and promising future depend on this trial, but he sits quietly and composed throughout, waiting for the moment when he will take the witness stand to give his version of events.

For now, he listens to Ava, who is answering questions about her relationship with him and the alleged rape. The Crown asks if the videotaped statement she gave to police on August 3, 2012 is the truth. Ava says it is, which means that instead of her testifying to the court about what happened back then, her police statement will be taken as evidence. The interview appears on the monitors of all the court officials and lawyers.

The two officers who took Ava’s statement, we see on the video, are both men. The primary interviewer is Detective Brian Wookey, who is present in court throughout the trial, and extremely protective of Ava. The videotaped statement begins with her giving her account of what happened in the hours that preceded the alleged assault, when she and two friends went to see a Down with Webster concert at Dundas Square.

“I’ve heard of them,” says Wookey. “But I don’t know any of their tunes.”

He appears to have a good rapport with Ava, and she seems less nervous on the video than in the courtroom. On the screen, she explains how her father dropped her off at her girlfriend Zoe’s house (also not her real name), where she was supposed to spend the night.

Ava says that as she, Zoe, and another friend got ready for the concert, they split a mickey of rum before hopping on the subway to head downtown. At the concert, Ava and Zoe got into an argument over booze. Zoe and the other friend walked off, leaving Ava to find her own way home. Because it was after midnight and the bus from the subway to her house was no longer running, Ava says, she started calling friends with cars, looking for someone to give her a lift home from the TTC station. According to her account, none of the first three people she tried picked up, so she made a fourth call to Matthew, who agreed to meet her at the station.

Ava says she and Matthew hadn’t had much contact in the two weeks since he stood her up on her birthday. They had texted the weekend before, while she was in Muskoka, north of Toronto. And then earlier that day, she been in touch with him about getting back some of her belongings.

Wookey asks how long they talked.

“A total of an hour throughout the day,” says Ava. “There were twenty messages between me and [Matthew].”

Wookey is confused. “Do you mean talk on the phone or texts? ” he asks.

“No talk on phone, just messages,” says Ava. “BBM[BlackBerry Messenger].”

As the videotape plays, Ava watches herself from the witness stand. She covers her eyes with her hand, and sometimes covers her mouth, as well. She pulls up the scarf looped around her neck to hide the bottom of her face. She looks away in distress. She cries.

Wookey asks Ava how she originally met the accused, and she replies that she had known him since she was in grade nine when he dated a friend of hers. “In April [2012], he messaged me on Facebook that he was coming home from the States in June. He gave me his number and [BBM] PIN.”

Following that, they dated for about a month and a half before the split-up in July 2012.

When Matthew picked Ava up at the subway station early on the morning of August 2, she says on the video, she put on some music in his car and told him what she’d been doing. “It was normal chat, didn’t feel awkward,” she says. “I said I was good but tired, upset about [Zoe].”

They drove the normal route toward Ava’s house. But just before they got there, she says, Matthew turned into a school parking lot and asked if they could talk.

“There were two garbage bins. We were right beside [one],” she says. “He unbuckled his seatbelt. He tried kissing me. I pushed his face and said, ‘Please stop.’ ”

“He said, ‘I know you want to. You miss me. I miss you.’ ”

She says he tried to kiss her again and got mad when she resisted.

According to Ava’s account, Matthew said, “What am I? Your fucking taxi driver? ” To which she replied, “No, you’re a friend doing a favour,” she said. This, she says, prompted Matthew to answer, “If I did you a favour, I should get a favour in return.”

“I said, ‘Stop, you’re being ridiculous.’ I kept repeating stop. I asked him, ‘Please take me home.’ He said, ‘You want it,’ and put the passenger seat back.”

Over and over, Ava repeats that she kept telling Matthew to stop, that it wasn’t funny, that she wanted to go home.

“I grabbed my phone. He grabbed it out of my hand and threw it in the back seat. The back of my phone fell off. I froze when he threw my phone. . . . He was pinning me down. His knees were on my thighs.”

Matthew held down her arms, Ava says: “He had sex with me when I didn’t want to.”

Wookey asks for details of the assault. Among other things, he wants to know how long it lasted.

“Forty-five minutes,” Ava says.

Wookey rephrases the question twice to make it clear he’s talking about the duration of the assault itself, not the entire encounter.

“Forty-five minutes,” Ava repeats. “I tried to push him off. He had no condom.”

In court, as Ava listens to this discussion of the most intimate details, she holds a tissue over her mouth and a hand over her eyes. A few minutes later, she puts her hands up through her scarf and holds her cheeks. She appears highly distressed.

After the alleged rape, as Matthew was supposedly putting on his pants, Ava says she grabbed her phone and ran out of his car to her home. It took her two minutes to get there.

Justice Trotter looks at Ava, who now has her head down on the witness stand.

On the video, she says that when she arrived home, she was crying and dishevelled. She immediately took a bath and noticed bruises on her arms and her legs. Her mother came into the bathroom and asked why she was upset, what was going on. Somehow, Ava’s mom found Matthew’s number and began texting him.

Not long after this, Ava’s father, who is divorced from her mother, arrived at the house. “My parents and I decided to call the police,” Ava says. An ambulance took her to a hospital, where she was treated by a rape nurse. The nurse took vaginal and oral swabs; Ava was prescribed antibiotics and an emergency contraceptive pill.

Wookey questions Ava about how she felt at the subway station where she met Matthew, if the effects of the rum she drank earlier had worn off. “I didn’t feel drunk,” she answers. “I felt tired. I was not drunk. I was upset because of what happened with [Zoe].”

As the video statement wraps up, Wookey asks Ava to show him the bruises on her arms and legs. With that, the monitors are turned off and the court breaks for lunch.

When we return, the photos of Ava’s injuries are entered for the record. The pictures were taken on two different dates: on August 2, the day of the alleged assault, and on August 6, when her bruises were most visible.

Assistant Crown attorney Reid shows Ava the first photo in a series.

“What is the cause of those bruises? ” she asks.

Ava answers.

“What portion of his body caused that bruise? ”

“Where was the photo taken? ”

“Tell us about the injuries.”

When the later set of photos are introduced, Ava is asked: “Was there any event or episode in between that caused the injuries? ”

“The incident in the car August 2,” she says.

Ava seems less distraught now than she was during the morning session, but she remains anxious as Reid asks some questions unrelated to the photos.

“Could you have left that vehicle before you did? ”

“No. He was holding me down.”

“Do you know whether the door was locked or unlocked? ”

“No, I don’t know.”

“Describe your level of intoxication.”

“It [had] decreased. I wasn’t even drunk.”

“What was the level of force? ”

“His hands and his body.”

“Do you know what [Matthew] did when you left the car? ”

“No. I didn’t look at him.”

When the Crown is finished questioning Ava, she leaves the witness stand and the room.

Next, the judge presides over a non-public session known as a “276 application,” which will continue until lunchtime the following day. The name refers to Section 276 of the Criminal Code, also known as the rape-shield law, which sets out the procedures that must be followed in order to introduce anything relating to the previous sexual history of a sexual assault complainant — including the history between the complainant and the accused.

Part 2: Are you sure?

The accused, Matthew, has a two-lawyer defence team: Carolyne Kerr, a former Crown attorney who used to prosecute rape cases; and Gary Stortini, a veteran criminal defence attorney with a grandfatherly air — he reminds me of Matlock. It is Stortini who cross-examines the complainant, Ava, about her August 2, 2012 encounter with the accused, Matthew. It’s the incident that led to this trial. (Her version was the subject of Part 1 of this series, She Said.)

“I am going to ask you to bring your mind back to 2012,” says Stortini, as he sets out to take apart Ava’s statement to the police — a videotaped interview that seemed highly believable to me a few days earlier, when I watched it in this courtroom.

Things go wonky right from the beginning. Under oath, Ava denies having originally met Matthew at a school dance that took place more than two years before the alleged assault — as I’d heard her tell the police in her recorded statement. Stortini reminds her of the contradiction.

He then suggests that when the two met again in June 2012, it was she who made first contact with Matthew over Facebook — not the other way around, as she’d told the police. Stortini implies that she might have done this (reached out to a young man whom she’d never met) after losing a significant amount of weight.

“How tall are you? ” he asks.

“Five-foot-five,” she answers.

“How much did you weigh? You were heavier.”

“Now? One-twenty.”

“How much heavier were you [before you met Matthew]? ”

“I was 150.”

Ava begins weeping. Stortini turns to Ontario Superior Court Justice Gary Trotter, who is presiding over this trial. “It’s almost impossible to cross examine her in this state,” he says.

“Is weight relevant? ” asks the judge, before calling a brief recess. In tears, Ava races off the witness stand. Detective Brian Wookey, the Toronto Police Services officer in charge of her case, follows her out into the halls. Stortini exits the courtroom through the lawyers’ door — only to storm back in minutes later. Wookey follows on his heels. Stortini complains to the Crown about a conversation he has just overheard between the detective and the complainant.

“I’m not trying to influence her in any way. I’m just trying to calm her,” Wookey says, as he and Stortini — both men are more than six feet tall — raise their voices at each other.

The argument ends when the detective apologizes to the attorney. It’s unclear why it began in the first place.

By the time Justice Trotter returns, the ill feelings seem to have subsided. Stortini resumes his questioning, asking Ava why she is trying to give the impression that Matthew initiated contact between them, when it was instead the other way around.

“False,” she says.

“Would you like to look? ” he asks, as he points to the transcript he has just given her. It’s from a preliminary inquiry held one year ago.

Ava turns away.

“You have to look at [it], even if you don’t want to,” says Stortini.

“You’re right,” interjects the judge, “but you did ask her if she wanted to.”

Stortini nods, then reads from the transcript. It’s a passage from Ava’s testimony. “Question: Back in June 2012, did you initiate [Facebook] contact? Answer: In the beginning, yes.”

He looks at Ava and asks, “So you initiated contact? ”

“Yes,” she says. It is one of many shifts she will make over the next three days of this trial.

Stortini asks Ava if she did this because she was interested in Matthew.

“Why would I be interested in a guy who’s in a different country? ” she says, alluding to the fact that by the spring of 2012, Matthew had left Toronto to attend an American prep school. “That makes no sense.”

Stortini broaches Ava and Matthew’s first in-person meeting of 2012. “You were attracted to him? ” he asks.

“I’m sorry — I could not like or be attracted to a guy I just met for two hours,” Ava responds, as if he is talking nonsense.

The lawyer turns away from the witness stand. He raises his eyebrows as he walks back to his podium.

Stortini and Ava have starkly different accounts of this encounter. He says she and the accused drove to a school parking lot — the same location where the alleged assault would take place months later — got out of Matthew’s vehicle, and walked around an adjoining park. They talked, briefly got to know each other, then returned to the lot and had sex in his back seat.

“That never happened,” the complainant cries on the stand. “That never happened.”

In her version, the pair instead went to Tim Horton’s for coffee.

“How long? ” asks Stortini.

“Five minutes.”

“Drive through or sit down? ”

“We got a coffee and walked.”

“What did he do with his car . . . where did you walk to?”

Ava asks for a break.

Justice Trotter, who has been kind and accommodating to her up to this point, reminds the witness that he’s in the middle, not on either side. “All of the questions asked have been proper,” he says. “They’ve been put in a polite and professional manner.”

The judge calls a lunch break. When we return, Stortini continues with his narrative, describing a young couple who met and immediately embarked on an intense sexual relationship. Ava consistently rejects his suggestions.

Matthew, his lawyer says, was busy juggling a full-time summer job and sports events in both Canada and the US. Ava, Stortini continues, had a lot more time on her hands. According to him, she quickly grew frustrated that Matthew didn’t have more time to spend with her.

The story Ava tells, on the other hand, is that she and Matthew were just friends for the first month after meeting each other. He meant nothing to her. Apart from the occasional hug, their interactions were entirely chaste. “I didn’t hound him,” she says. It’s the first time I hear her use an expression that she will repeat many times.

Stortini asks about a sports match of Matthew’s that Ava attended within the week when she met him. Her mother drove her there, and Matthew brought her home. On the way back, Stortini says, the pair stopped in a school parking lot and had sex in his back seat.

“No!” Ava cries. “Never happened.”

“You were on top.”

“It never happened. He took me straight home.”

“You left your panties behind.”

“No, I did not,” she says, pulling her hair back and weeping. She leaves the courtroom in a semi-hysterical state.

“This is very upsetting to the witness, obviously,” says the judge to the defence attorney. “But you have to do what you have to do.”

“I don’t feel comfortable not doing it,” says Stortini, noting that his persistence has already prompted Ava to change her story on certain events, including how she had met Matthew, and who initiated their contact in 2012.

When the trial resumes, Stortini picks up his thread. “On the way home [from Matthew’s game] . . . did you ask, ‘Where are we? ’”

“I wanted to know his intentions. I’d only seen him a couple of times.”

The lawyer says he finds it strange that Ava is maintaining they were nothing more than friends.

“I was just curious why, as a single girl, he had asked me to come to his game,” she explains. “What were his intentions? ”

“You didn’t care? ” Stortini asks her.

“I didn’t care . . . I had friends. It wasn’t me hounding him.”

Stortini moves on. He asks Ava about a time when Matthew visited at her home, and they went together to Swiss Chalet with several members of her family.

“Were you holding hands under the table? ” he asks.

“No,” she replies, as if this is a ludicrous suggestion. “We were eating. No, because my niece was there.”

Stortini asks about the couple going to see a late showing of The Amazing Spider-Man, more than a month after their first meet-up.

“Were you holding hands, eating popcorn, getting comfortable? ”

“No, we just put our feet on chairs.”

“So you weren’t being affectionate at all, correct? ”

“Yes. Correct.”

“Did you kiss him at home? ”

“I hugged him goodnight.”

Stortini describes still another encounter, a time when he says that Ava and Matthew returned to the spot where they first had sex — and where her alleged assault later took place.

“He came to your house, picked you up. You went to where you both knew it was safe . . . and you parked there.”

“No,” she insists.

“That didn’t happen? ”

“If we wanted to do that, we had my home when no one was [there]. No.”

Justice Trotter has already asked the defence attorney and the complainant to “give each other more space”: for him to let her finish her answers, and for her to let him finish his questions. After Stortini and Ava exchange a few more parries, the judge calls a halt to the session. “It’s been a long day,” he says.

Read the rest of On Trial for Rape: The full ebook is available on Amazon. Click here

Part 1: She Said
Part 2: Are You Sure?
Part 3: Can the Complainant Continue?
Part 4: The Facebook Test
Part 5: He Said
Part 6: “I’m Not a Rapist”
Part 7: Closing Arguments
Part 8: The Verdict

 

Mark Smich wants Laura Babcock murder charge stayed

 

Accused Murderer Mark Smich

Mark Smich was charged in April 2014 for the murder of Laura Babcock. His trial is set for September 2017, three and a half years later

By now you may have heard the news that Mark Smich, the convicted killer of Tim Bosma (along with his ex-pal, Dellen Millard), wants the charges against him for the murder of Laura Babcock stayed due to undue trial delays.

You may be panicking. Could this really happen? Oh yes it can, you’re saying. Look at this case in Ottawa where an alleged murderer got off and this one, where charges of sexually assaulting a child were stayed because technical issues caused trial delays.

In the latter case, Ontario Court Justice David Paciocco said the accused’s right to a speedy trial had been violated. He cited the Supreme Court’s recent Jordan ruling, which set time limits on the period between charges being laid and the trial getting underway. Those limits are 18 months for most criminal cases and 30 months for the most serious cases, including murder.

Justice Julianne Parfett used the same reasoning when she stayed the Ottawa first degree murder charges mentioned above. In something of an understatement, she wrote in her ruling: “I am well aware that, in deciding to stay these charges, the family of the deceased in this matter will not see justice done as they would want.”

According to the news reports, neither of these judges seemed overly concerned about the possibility their rulings might bring the justice system into public disrepute. Ontario’s attorney general almost immediately asked for a review of Parfett’s ruling. (Ed: I’d like a review of how she became a superior court judge. Can you look into it? And what’s up with this Paciocco guy while you’re at it?)

The news of Smich’s upcoming motion was raised by his lawyer Thomas Dungey in Toronto court today for a routine proceeding.

In another case, whose updates were heard just before Smich’s, there were also concerns raised about possible trial delays. Regarding this other, non-Smich case, Justice John McMahon said, “We’re not going to have a murder case in Toronto stayed because we didn’t do it in the time. It’s not going to happen.”

Smich was charged with the murder of Laura Babcock in April 2014. His trial was supposed to have begun earlier this month but was delayed because his co-accused Dellen Millard said he couldn’t find nor pay a lawyer and he had been denied legal aid. That caused the Babcock trial to be bumped to September of this year. (The court also heard Millard still hasn’t gotten his finances sorted and is appealing the Legal Aid decision.)

Millard’s and Smich’s circumstances are somewhat unusual given that they themselves weren’t available at earlier dates for the Laura Babcock trial. They spent several months of 2015 and the first half of 2016 in court in Hamilton for the murder of Tim Bosma for which they were eventually convicted.

Millard is also charged with the murder of his father, Wayne, a trial which isn’t scheduled to take place until 2018.

Both Smich and Millard are pleading not guilty to all charges against them.

My book, Dark Ambition provides the full story to date.

 

New series on a sexual assault trial: Beyond a Reasonable Doubt

In 2015, I wrote an eight-part series on a sexual assault trial for the Walrus magazine. It generated so much interest the magazine asked me if I could do another series. I proposed a very different but equally interesting sexual assault case.

The new series, called Beyond a Reasonable Doubt, is now in progress. Here are the links:

Part 1: She says he raped her. He says he never touched her. At least one of them is lying

Part 2: “I was stupid, I was young, I was ignorant—and that’s all I admit”

Part 3: Why can a witness remember many details yet be so vague about the sexual assault itself?

Part 4: The verdict arrives. And so does Marie Henein—best known for representing Jian Ghomeshi

Part 5: Post-verdict

Part 6: The appeal

As of Jan. 27, 2017, I am awaiting a court ruling to see what happens next. Sign up for my newsletter to ensure you don’t miss the appeal decision and the epilogue of Beyond a Reasonable Doubt.

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Tweets from the Tim Bosma murder trial

This spreadsheet of all the tweets from three journalists covering the 2016 trial of Dellen Millard and Mark Smich is an incredibly valuable resource.

Hamilton Spectator columnist Susan Clairmont’s tweets provide an excellent narrative overview of the trial while CBC reporter Adam Carter gives the most transcript-like coverage. Molly Hayes of the Spec often catches fascinating details that others missed.

Big thanks to Ron Verbeek, a “civilian” who followed the trial and pulled it all together.

Since the Bosma trial, I’ve followed some high profile U.S. trials on Twitter and the tweet coverage was nowhere near as good as that provided by these three journalists.

It was an invaluable resource to me as I wrote my book, Dark Ambition.

 

Farewell Christina Noudga, who’s taken a plea deal, will work for human rights

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christina-noudga-and-dellen-millard

Dellen Millard with his ex-girlfriend Christina Noudga.”I deserve you and you deserve me,” he wrote to her in a letter from jail.

Goodbye and good riddance to Christina Noudga.

When Dellen Millard’s unpopular ex-girlfriend left a Hamilton courtroom Tuesday, after accepting a plea deal and pleading guilty to obstruction of justice, there was, more than anything, an overwhelming sense of relief.

The deal meant there would be no more Noudga. No recounting of what Crown attorney Craig Fraser described as “the horrific and soul destroying details of Tim Bosma’s murder.” No three-week-long trial to determine if Noudga should be found guilty as an accessory after the fact to the murder of Tim Bosma.

Instead, Noudga, whose trial would have begun this week, pled guilty to the lesser charge of obstructing the course of justice by destroying evidence. The deal meant Tim Bosma’s family would finally be able to end their painful involvement with the criminal justice system. “They believe Ms. Noudga is being held to account for her actions,” Fraser told the court. “The public interest…truly is best served by sparing the Bosma family another trial while still holding Ms. Noudga accountable for the role she played in destroying evidence.”

Christina Noudga, dressed in dark blue and black, dabbed at her eyes before the hour-long proceedings, began and as they ended. Although it was impossible to tell if she was wiping away tears, her attitude was markedly changed from the Bosma murder trial where she shocked the court time and again with her lack of empathy and failure to display any remorse. Smart, pretty and ambitious, she managed to leave even hardened homicide cops and veteran criminal lawyers shaking their heads in disbelief. After the trial, Tim Bosma’s mother Mary would describe her as “evil.”

During her week on the witness stand, Noudga laughed in court as if oblivious to the fact she was testifying at a murder trial in front of the victim’s parents, sisters and widow. She said she remembered little or nothing of many of the key events about which she had been called to testify. She appeared to have no sense whatsoever of right or wrong. Respect was a foreign concept.

In one of the trial’s most memorable moments, a letter Millard had written to Noudga from  jail was shown on the courtroom screens. “I believe we deserve each other,” Millard wrote. “I deserve you, and you deserve me.”

“That’s what he wrote to you?” asked Thomas Dungey, the lawyer for Millard’s co-accused, Mark Smich.

“Yes,”replied Noudga.

“Thank you,” said Dungey, “no further questions.” It was the last time Noudga had exited the Hamilton courthouse in the glare of the media.

This week, her lawyer Brian Greenspan said his client can change. She was just 18 when she met Millard and 21 at the time of the events in question. She has since graduated from university and plans to go to graduate school in health sciences. She has a job waiting for her once her legal issues are settled. And she’s doing grass roots work for indigenous peoples in Honduras. She’s joined Amnesty International.

The old days of Christina posting YouTube videos of herself cursing Ecuadorean immigrants and condescending to entire courtrooms are over. She’s rebranding as a human rights advocate and, though this was not mentioned in court, an artsy Instagram party girl.

Greenspan says Noudga accepts responsibility for those actions she engaged in — destroying evidence by wiping away fingerprints — but not for those conducted without her knowledge, by which he means the murder of Tim Bosma.

This question of what exactly Christina Noudga did or didn’t know about that murder would have been at the heart of her accessory after the fact trial had it taken place. To prove her guilty, the Crown would have had to have shown that she knew her boyfriend had murdered an innocent man when she went with Millard to hide the trailer containing Bosma’s truck and to move the incinerator used to cremate the victim’s remains.

Fraser said the prosecution was in a “strong position” but that its case was circumstantial and “inferences would have to go the Crown’s way.” He said there was no direct evidence of Noudga having knowledge of the murder.

What he most definitely did not express, however, is what Greenspan later told the Canadian Press — that it is “clear and accepted by everyone…  that (Noudga) was totally unaware that a homicide had taken place.”

Whether or not Noudga knew or didn’t know is a topic on which there will likely continue to be disagreement along with the question of whether justice was done. But to the people in the courtroom, the plea deal was the right choice. And its rightness was only reinforced when Justice Toni Skarica announced that he would have found there to be “insufficient evidence that would prove, beyond a reasonable doubt, that the accused knew about the murder that had just occurred.”

It was a surprising declaration from the judge and a reminder of why plea deals so often make sense for both parties. For better or for worse, they take the unknowns and the uncertainties out of the mix.

In exchange for time already served in jail, a sample of her DNA, and a criminal record, Christina Noudga was free to go. And the Bosmas, the police and prosecutors were free to never spend another minute in her presence. That was worth a lot to everyone involved.


You can read the full story of Christina Noudga’s testimony at the Tim Bosma murder trial, and all about the jailhouse letters she received from Millard in the book, Dark Ambition: The Shocking Crime of Dellen Millard and Mark Smich.

Dark Ambition is for sale online at McNally Robinson, Chapters/Indigo, Amazon.ca and Amazon.com. Or you can pick it up in your local indie bookstore, Chapters, Indigo, Coles — and at Costco.

Dark Ambition chronicles the Tim Bosma murder investigation and trial

Featured

screen-shot-2016-09-16-at-2-37-55-pmDark Ambition: The Shocking Crime of Dellen Millard and Mark Smich went on sale November 8. (Yes, that day.) In between the wall-to-wall Trump election coverage, I did a number of radio and TV interviews about the book, two of which have been posted online.

If you’re curious, my talk with John Gormley can be found here, the last item on the November 9th list. I also spoke to Scott Radley of CHML in Hamilton, who wondered what more there was for the public to know about the Tim Bosma case after the very extensive trial coverage. You can hear my response by going the station’s audio vault and filling in the date (Nov. 9) and time (7:00 p.m.) of the interview and then fast forwarding to 7:42 p.m.

Radley is not the first person to ask me if they will learn something new from the book. Here’s what some readers said:

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Comments like this are extremely gratifying. One of my goals with this book was to take people inside the courtroom and help them understand in detail what it’s like for the police to investigate a murder, and then for the prosecutors to bring the case to trial. Another thing I try to do is give readers a feel for how this tragic and extremely high-profile murder  was discussed in social media and occupied armchair detectives at sites like Websleuths, which not everyone is familiar with.

You can buy Dark Ambition in most bookstores and order it online at Chapters/Indigo and Amazon although the hardcover version is temporarily out of stock until Nov. 17th at Amazon Canada. A few copies are still available at Amazon.com.

I’d be happy to answer any questions you might have about the book in the comments section. Or you could come out and talk to me in person at a special literary evening on Thursday November 17th in Burlington. Writers Stephen Brunt and Brent van Staalduinen will also be there discussing their new books. There’s a $20 admission fee with all proceeds to the East Plains United Church.

Come hear about ‘Dark Ambition’

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Pre-order at Amazon or Chapters/Indigo

I’ll be speaking about my new book, Dark Ambition: The Shocking Crime of Dellen Millard and Mark Smich on Thursday November 3 at the Barbara Frum library.

Although Dark Ambition won’t be officially released until November 8, there will be special copies for sale on Thursday.

Also speaking will be Jeremy Grimaldi, author of A Daughter’s Deadly Deception, the story of the fascinating Jennifer Pan case.

Here are the details.

Hope you can make it if you’re in the GTA.

True crime podcasts and two new books

Dear readers,

It’s been a long time since my last newsletter, so thank you for your patience.

So many true crime podcasts, so little time

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While my dog rolls in the snow and on the grass, I listen to podcasts and (in the future) the War and Peace audiobook

I listen to a lot of podcasts while I walk my very stubborn and slow moving dog twice a day. In past weeks, I’ve been binge listening to true crime including several recently released new podcasts that I can highly recommend. You can subscribe to all of them for free through iTunes.

Accused

This is the fascinating story of a 1978 murder case, where the accused was acquitted at his murder trial and then found not liable in a civil case. But despite the fact that two juries didn’t believe he did it, police and prosecutors remained so convinced he was guilty, they refused to pursue other possible suspects.

This series is not as slick as Serial, to which it pays nudge nudge, wink wink homage, but it has a better underlying story to work with. The reporting team, led by Amber Hunt, has also managed to score interviews with just about all the key players, a feat which eluded Serial’s Sarah Koenig.

And, added bonus, Accused comes out twice a week, so you don’t have to wait a full seven days to get your fix.

Up and Vanished

When I first started listening to this one, I had a sinking feeling. The producer, host and writer Payne Lindsey seemed awfully green and episode one was rather formulaic. But the case of Tara Grinsted, a small town teacher and beauty queen who disappeared in 2005, was compelling enough to keep me listening, and I’m glad I did.

By episode two, Payne was getting all sorts of Georgia good ole boys to talk, racking up the scoops, and putting his grandma in the podcast. While she baked Cowboy cookies, it was revealed that she knew someone who knew something about the missing woman. Payne was adorable. No wonder everyone was spilling their guts to him. Not to mention that he held a Cowboy cookie giveaway.

The podcast is on a short hiatus as Payne gets married this weekend. You can catch up on all three episodes while he’s on his honeymoon. Congratulations to the bride and groom.

In the Dark

Just as this podcast about the unsolved 1989 abduction and murder of Jacob Wetterling was about to launch, the killer confessed. Needless to say that caused some last-minute revamping of a project that its creators had already been working on for a year.

The first three episodes have been both timely and strong as they look at why it took 27 years to bring a killer, who should have been a suspect very early on, to justice. The big question for me is whether they will be able to keep it up for five more episodes now that the murderer has confessed

Reading list

screen-shot-2016-09-16-at-2-37-55-pmJust a reminder that my book, Dark Ambition: The Shocking Crime of Dellen Millard and Mark Smich, is coming out in November. You can read more about it and pre-order by clicking here.

Christie Blatchford’s new book Life Sentence: Stories from four decades of court reporting – or, how I fell out of love with the Canadian justice system (especially judges) will be for sale next Tuesday and a piece on judges gone wild is excerpted in the National Post.

 

Have a good weekend, everyone. Next newsletter will be next week.

AnnB

How much is Dellen Millard worth?

Just how much Dellen Millard is actually worth has always been one of the mysteries surrounding the convicted murderer.

Receivership documents filed with the courts in November 2015 indicate there’s a severe cash flow problem.

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Millard’s major asset, a shareholder loan of $4.2 million made to Millard Properties, may not be good and even if it is, he may never be able to collect it for all sorts of legal reasons.

While these documents make interesting reading, two key figures are still missing: the value of Wayne Millard’s estate and how much the hangar sold for. That makes it impossible to estimate how much money remains in the Millard family coffers and how much, if any, may end up coming Dellen’s way.

Also of interest are the claims made by the Bosma family against Millard and the fact that Millard’s mother Madeleine Burns had to go to court to free up $75,000 to pay various legal fees for both herself and her son.

 

What brought Mark Smich and Dellen Millard together?

The question of how Mark Smich and Dellen Millard came to be best friends has been asked many times since the two men were charged in May 2013 for the first degree murder of Tim Bosma, a crime of which they were eventually convicted.

In one of his letters from jail to his girlfriend Christina Noudga, Millard wrote: “Some people gave food to food banks, some people donated money to the homeless, and some people spent months in africa building homes. Mark was all three rolled into one for me.”

Smich’s girlfriend Marlena Meneses testified at his trial that she believed Mark was “in love” with Dellen, who had promised to help him fulfill his desires to be a rap star.

A selfie still from one of Mark Smich's rap videos

A selfie still from one of Mark Smich’s rap videos

Although Smich was commonly perceived to be Millard’s follower, when he took to the witness box at their joint trial, he pointed the finger straight at Millard, saying he alone had murdered Tim Bosma.

Smich proved a self assured witness whose story was believed by many. During his four full days of cross examination by Millard’s lawyer, Nadir Sachak, there were many testy encounters between the two. At one point Sachak asked Smich to rap for the jury, Smich’s lawyer Thomas Dungey quickly objected, and the judge agreed, telling the court, “He can read, but I don’t think he has to perform it.”

Smich then read aloud the lyrics he had written:

Its me muthaphuka, so relentless
Runnin from cops outta them spots, over them fences
Im high so im half fuckin demented
But i still
gotta get away nice and splendid
Got my 9
So im runnin like its nothing … Till im dead, kid!
I am not unstoppable
but I like to live my life without the cops involved
Its not probable, but if it happened to me … . Problem solved!
Im just comin for the loot, so shoot first, i come for your new purse, and wallets, I
want some chronics, and that juice cuz ima alcoholic,
No stallin, give it to me in a quick haste, more speedy then fast paced,
Im runnin away from the police in a cash race,
First one, im never last place

The creation date for this particular lyrics file on Smich’s iPad was February 16, 2013, while the date for last modification is May 21, 2013, the day before Smich was arrested.

When Sachak erred in referring to a date, Smich pounced on his mistake. “Could be one those brain cramps,” he said. “You’re probably under a lot of stress.” The comment didn’t fit with Smich’s portrayal of himself as the victim of his powerful friend’s crime, but it provoked laughter in the courtroom and was much remarked upon online by those following the trial live on Twitter.

“Zing,” wrote “meterclicks” on Websleuths. “MS is giving Sachak a taste of his own medicine this morning.”

“Oh snap LOL,” wrote “Kamille.” “MS should have been a comedian LOL.”

“Interesting. I’m starting to believe that MS is not as dumb as what I first thought,” said “Redheart.”

“Smich is getting sassy,” wrote “Katpaws.” “I’m still fully on the fence about MS’s role, but I’m not a fan of Sachak’s style at all … so I can’t help but take a little delight in MS’s quick comebacks. Clearly cleaning himself up has revealed a more clever and quick-witted guy than we initially realized.”

Undeterred by Smich’s retort, Sachak asked again what exactly Smich modified on May 21, 2013.

Smich explained instead that adding one letter or a space would cause a file’s modification date to change.

“Tell us what was modified,” said Sachak in exasperation. “What part was modified on May 21, 2013?”

Smich gave a lengthy account about how Meneses could have used the iPad and caused the modification. He repeated his explanation about inserting a character by mistake, adding that the file could have been opened randomly.

Sachak cut him off. “I don’t need to know how an iPad works,” he said, looking at the jurors as if to say he shared their pain. “Just tell me, What did you modify? Please help me. Please answer that question.”

Smich never did.

Sachak placed more rap lyrics on the courtroom screens.

You can read the full story of Smich’s testimony in my book, Dark Ambition, due out in November 2016.