STORY: "Ten years after he was acquitted, this Toronto man faces a third trial for the same murder," by Toronto Star Legal Affairs Reporter Jacques Gallant, published on November 1, 2017.
SUB-HEADING: "Warren Abbey is accused of first-degree murder in the execution-style shooting death of 19-year-old Simeon Peter in 2004."
GIST: "In a rare move, a Toronto man will face a third trial for the same murder. “The
Crown is intending to proceed with this prosecution,” Crown attorney
Julie Battersby told a Superior Court judge Wednesday, in the case of
Warren Nigel Abbey, who was sitting in the prisoner's box. Abbey is accused of first-degree murder in the execution-style shooting death of Simeon Peter, 19, in Scarborough in 2004. His lawyer declined to comment to the Star on Wednesday. Abbey was acquitted at his first trial in 2007, but after the Crown appealed, he was tried a second time in 2011, at which point he was found guilty. Then Abbey appealed, and last summer, the Ontario Court of Appeal ordered that he should face a new trial. The
decision to proceed to a third trial was ultimately at the discretion
of the Crown, which could have chosen to withdraw the charge. The new
trial may prove to be an uphill battle for prosecutors, who find
themselves without a key part of their evidence against Abbey following
the Court of Appeal ruling in August. The
Crown had alleged at Abbey's second trial that he was an associate of
the Malvern Crew gang who shot and killed Peter, mistakenly believing he
was a member of the rival Galloway Boys, and that Abbey had a teardrop
tattooed under his right eye about four months later. Testifying for the Crown, sociologist Mark Totten said
a teardrop tattoo meant one of three things: the individual had lost a
loved one or fellow gang member, had spent time in prison or had killed a
rival gang member. But Ontario's top court came down hard on
Totten in their ruling overturning Abbey's conviction. After the defence
raised “fresh evidence” — issues surrounding Totten's research and
testimony — the court found Totten's testimony contained “inaccuracies”
and even “falsehoods.” A
three-judge panel found his evidence “unreliable,” that he
“misrepresented” the sample size of gang members in some of his studies,
and that statistics he provided on the stand about gang members with
teardrop tattoos are nowhere to be found in his studies. “I have
concluded that the fresh evidence shows Totten's opinion evidence on the
meaning of a teardrop tattoo to be too unreliable to be heard by a
jury. If the trial judge had known about the fresh evidence he would
have ruled Totten's evidence inadmissible,” Court of Appeal Justice John
Laskin wrote for the panel. “And the absence of Totten's evidence
would reasonably be expected to have affected the jury's verdict. I
would admit the fresh evidence, allow Abbey's appeal, overturn his
conviction and order a new trial.” Indeed, at Abbey's first trial,
the Crown was barred by the judge from having Totten give evidence, and
the jury ended up acquitting Abbey. There is other Crown
evidence, but Laskin noted in his ruling that the rest of the Crown's
case “was not overly strong,” and included poor eyewitness testimony and
“problematic” evidence from three Malvern Crew members whose testimony
implicated Abbey. Two of them testified in exchange for being granted
immunity on a number of serious offences, while the third member refused
to testify at the second trial. It was ironic that the Court of
Appeal ordered a third trial due to Totten's evidence, given the fact
that it was the Court of Appeal — albeit a different panel of judges —
that allowed the Crown's appeal and ordered a second trial in 2009,
finding that Totten should have been allowed to give evidence on
teardrop tattoos. (The issues about Totten's evidence that were before
the top court this year were not before it in 2009.) Writing for a
unanimous three-judge panel in 2009, Justice David Doherty said that
viewed cumulatively, Totten's evidence along with the evidence of
Malvern Crew members about the meaning of teardrop tattoos “could
reasonably present a compelling picture for the Crown.” “I do not
suggest that a jury would necessarily take that view of the excluded
evidence,” he wrote. “I say only that a reasonable jury could take that
view. If it did, the verdict could very well be different.” And it
was. Abbey was convicted of first-degree murder by a jury at his second
trial in 2011, and sentenced to life in prison without chance of parole
for 25 years. A date for his third trial will be set Dec. 5."
The entire story can be found at:
https://www.thestar.com/news/gta/2017/11/01/ten-years-after-he-was-acquitted-this-toronto-man-faces-a-third-trial-for-the-same-murder.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
