Babcock Murder Trial - Weekend Discussion #6

[DeaconBrodie]

He can only be convicted of the lesser included offences of the murder for which he's charged. As outlined previously that is essentially M1, M2 or manslaughter. I think you're right that the jury would have a much easier time finding him guilty of something lesser, which I believe is exactly why he is is not charged with anything else. The Crown has essentially forced a choice on the jury - murder or manslaughter, or nothing. It would be extremely hard psychologically I think to let MS off with nothing given his role in the incineration. If he had been charged with committing an indignity to a human body that would invite a compromise verdict if they were struggling with his guilt for the murder. No such option here. The Crown is gambling on the strength of its case, and that often works out for them.

I would suggest that the Crown is not gambling on the strength of its case, the Crown is gambling on the emotions of the jury. You are correct though, this is strategy tat often works out in their favour.

 

[JuneBug67]

And if the jury cannot come to an agreement on MS, but does on DM, there will be a mistrial for MS and a verdict for DM. So will MS be retried on his own in that scenario?

Presumably the Crown could either decide to retry him for murder or offer him a plea on something like accessory after the fact.

 

[JuneBug67]

I would suggest that the Crown is not gambling on the strength of its case, the Crown is gambling on the emotions of the jury. You are correct though, this is strategy tat often works out in their favour.

Yes...a little of both, I agree. I would phrase it that the Crown is gambling on the strength of its case by betting on the emotions of the jury.

 

[mimimic]

I found line #49 in the CanL11 to be indicative of guilt. I can just hear a tone in MS saying..."well even if I did...."

 

[canadiangirl]

I found line #49 in the CanL11 to be indicative of guilt. I can just hear a tone in MS saying..."well even if I did...."

Remember when we all were discussing how MS mother was treated during the search? This is in that document
https://www.canlii.org/en/on/onsc/d...earchUrlHash=AAAAAQAGTm91ZGdhAAAAAAE&offset=0

[53] The police executed the search warrant on May 22, 2013. The police Emergency Response Unit entered first using a battering ram on the front door and employing a distraction device as they entered. According to the evidence, Officer King was positioned in the backyard. He saw the applicant’s mother, whom he described as “older”, in the backyard. He “hollered” for her to come to him, but she “ignored” him and went inside. The police entered the house to find the applicant’s mother coming in from the patio holding gloves and scissors. Officer Ing ordered her to put the items down and to get on the ground. The applicant’s mother was hysterical and not following the instruction. Officer Ing kicked a wooden coffee table out of the way and broke one of its legs against the fireplace. He told the applicant’s mother to sit on the couch, which she did.

[54] Following the entry, the applicant says that his mother told police that they had acted “like animals” in her home. She said if they had just come and showed her the warrant, they could have come in any time. She noted that the garage door had been open. Police were shouting and that they were “shooting” in her home. She said that she was “threatened”, and that she and her dogs were scared.

[55] I must point out that I do not have any evidence of these assertions before me in this application. Smich was not present when the search was executed.

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[Jealoushe]

I wonder if DM has given up on CN making overnight trailer visits?

Maybe his mother will do those trailer visits like Paul Bernado gets....*shudder*

 

[Georgeo]

Wonder if CN is glad she wasn't implicated any more than she was. Not having to testify was surely a relief. She really ought to be in prison far longer than the 4 months she did serve. Is there anything that LE can do at this point to her?

 

[Inspector_North]

Wonder if CN is glad she wasn't implicated any more than she was. Not having to testify was surely a relief. She really ought to be in prison far longer than the 4 months she did serve. Is there anything that LE can do at this point to her?

And Shane, he was in the know and assisted covering up thefts over $5000 at the very least. MOO

 

[cansleuther]

Interesting bit about MS in the CanLII document:

Javier asked investigators to pause the interview video as he was very concerned about his own son’s safety when talking about Mark. Javier asked that if he said anything what would happen. Javier stated that he doesn’t trust Mark. He described Mark as being 25-26 years old, tattoos, short, skinny, med build, white male, light brown hair, almost blonde.

https://www.canlii.org/en/on/onsc/doc/2015/2015onsc6633/2015onsc6633.html?searchUrlHash=AAAAAQAGTm91ZGdhAAAAAAE&offset=0

 

[ab-initio]

Deleted post.

 

[MrsThreadgoode]

Some interesting information during deliberation/sequestration:

So maybe they take the hotel phone too... But what if there is a family emergency? Seems harsh.

After the trial:


Wish I could find out more, specifically on what items they take away and/or disallow.
http://www.victimsofviolence.on.ca/research-library/juries-in-criminal-trials/

I am pretty sure that in the case of an emergency, family would be given contact names and numbers, who would then convey everything to the juror as well as the judge, who would then make a determination as to whether or not the juror could be dismissed. MOO.


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[palisadesk]

IT is over for MS he is not charged in death of DM s father. When the jury reaches verdict MS will either spend the rest of his life in prison or eventually will get out.
DM I am certain will be convicted of M1 and he is never getting out of prison. <snip>... Hopefully, that <trial in 2018> is very fast and he gets another M1 and will be considered a dangerous offender.

MS, being convicted of murder with a life sentence, is not now and never will be "entitled" to release on parole at any time. The 25 years is the length of time before he will be eligible for parole, but it doesn't suggest or indicate that parole will be granted, then or ever. While most murderers do eventually get released, and in fact have a very low rate of recidivism, those with a history of criminal and/or violent behaviour, psychopathy, drug abuse etc. are unlikely to meet conditions for parole. Those who are paroled are on parole and subject to strict conditions for the rest of their lives.

So MS might meet those conditions in the future. He has some things going for him, including family support and some demonstrated willingness to better himself, as evidenced by his academic achievements in custody. Only time will tell. There is something called the "faint hope clause" that allows prisoners to apply for parole after 15 years served - but it is well named, as this opportunity rarely results in earlier parole.

Whether either accused will receive a consecutive, rather than concurrent, life sentence remains to be seen, as the specifications around consecutive sentences changed on the initiative of the Harper government, but as I understand it, the decision is in the hands of the sentencing judge who has much latitude here.

As for DM being a dangerous offender -- he clearly is one, and I suspect he has committed other serious crimes, possibly including homicide, that we haven't heard about. But he will not be declared a "dangerous offender" under the law. That is because such a classification is redundant in a case like this. He is already sentenced to life in prison, and one sentence for M1 or three, he is unlikely ever to be released. The "dangerous offender" designation is designed for violent or predatory criminals who repeatedly prey on others, have multiple convictions, but whose offences yield sentences far shorter than life and who can therefore look forward to being released - to strike again.

See this explanation of the term, and then the very interesting list of offences which can engender this classification:

https://www.publicsafety.gc.ca/cnt/...nst-hgh-rsk-ffndrs/dngrs-ffndr-dsgntn-en.aspx

and

http://criminalnotebook.ca/index.php/List_of_Dangerous_Offender_Designated_Offences

A propos of a couple of other posts re included offences - I remember that in the Sammy Yatin case, the police officer was charged with 2nd degree murder but the jury convicted him of attempted murder, so attempted murder seems to be an included offense as affirmed also by this source (you have to scroll down a ways):

http://criminalnotebook.ca/index.php/Murder_(Offence)#Lesser_Included_Offences

I wish we could see the text of the judge's charge to the jury - it is bound to be both interesting and very informative.

 

[Grey-St]

MS, being convicted of murder with a life sentence, is not now and never will be "entitled" to release on parole at any time. The 25 years is the length of time before he will be eligible for parole, but it doesn't suggest or indicate that parole will be granted, then or ever. While most murderers do eventually get released, and in fact have a very low rate of recidivism, those with a history of criminal and/or violent behaviour, psychopathy, drug abuse etc. are unlikely to meet conditions for parole. Those who are paroled are on parole and subject to strict conditions for the rest of their lives.

So MS might meet those conditions in the future. He has some things going for him, including family support and some demonstrated willingness to better himself, as evidenced by his academic achievements in custody. Only time will tell. There is something called the "faint hope clause" that allows prisoners to apply for parole after 15 years served - but it is well named, as this opportunity rarely results in earlier parole.

Whether either accused will receive a consecutive, rather than concurrent, life sentence remains to be seen, as the specifications around consecutive sentences changed on the initiative of the Harper government, but as I understand it, the decision is in the hands of the sentencing judge who has much latitude here.

As for DM being a dangerous offender -- he clearly is one, and I suspect he has committed other serious crimes, possibly including homicide, that we haven't heard about. But he will not be declared a "dangerous offender" under the law. That is because such a classification is redundant in a case like this. He is already sentenced to life in prison, and one sentence for M1 or three, he is unlikely ever to be released. The "dangerous offender" designation is designed for violent or predatory criminals who repeatedly prey on others, have multiple convictions, but whose offences yield sentences far shorter than life and who can therefore look forward to being released - to strike again.

See this explanation of the term, and then the very interesting list of offences which can engender this classification:

https://www.publicsafety.gc.ca/cnt/...nst-hgh-rsk-ffndrs/dngrs-ffndr-dsgntn-en.aspx

and

http://criminalnotebook.ca/index.php/List_of_Dangerous_Offender_Designated_Offences

A propos of a couple of other posts re included offences - I remember that in the Sammy Yatin case, the police officer was charged with 2nd degree murder but the jury convicted him of attempted murder, so attempted murder seems to be an included offense as affirmed also by this source (you have to scroll down a ways):

http://criminalnotebook.ca/index.php/Murder_(Offence)#Lesser_Included_Offences

I wish we could see the text of the judge's charge to the jury - it is bound to be both interesting and very informative.

This is a lot of really good information. A lot to take into consideration. Thank you!

While I understand that no offender is entitled to parole, I'm still reluctant to trust the Parole Board of Canada. I don't think they always make the right decisions, and I find the Recidivism Risk Assessment Tool to be flawed and considered much more valuable than it truly is. My perpetrator was charged with over 30 offences, pleaded guilty to 3, and was sentenced to 6 years in jail. At his parole hearing, he got the chance to speak and actually said "if that ***** never talked, I would have never gotten caught". Not exactly the words of someone who understands the harm he's caused his victims, and wont do it again. The guy was (is?) a complete narcissist/psychopath/sociopath, quite similar to DM.

He got parole.

So if the sentencing judge really holds that much latitude when it comes to concurrent vs. consecutive, then I'd be concerned. If in 25 years they apply for parole, they just might get it. JMO.

 

[mimimic]

Still wondering: If LE had discovered more in their investigation that leads them to believe there have been more murders than the ones already before the courts, would they have stated that at the time they discovered it or is it possible they would wait?

 

[winter2017]

Thanks for this information. Definitely, DM is a violent dangerous offender. I also think MS is violent and not sure he would not re-offend. He has many years to serve yet so might bring about some realization to the crime he committed and remorse. I heard on a group that Millhaven which is where they will probably be, now has no more segregation. That means Barnardo and Rafferty are no longer in segregation? If there is no segregation that would be another reason to not testify and rat out someone. It would not be looked at very favorably in prison.

MS, being convicted of murder with a life sentence, is not now and never will be "entitled" to release on parole at any time. The 25 years is the length of time before he will be eligible for parole, but it doesn't suggest or indicate that parole will be granted, then or ever. While most murderers do eventually get released, and in fact have a very low rate of recidivism, those with a history of criminal and/or violent behaviour, psychopathy, drug abuse etc. are unlikely to meet conditions for parole. Those who are paroled are on parole and subject to strict conditions for the rest of their lives.

So MS might meet those conditions in the future. He has some things going for him, including family support and some demonstrated willingness to better himself, as evidenced by his academic achievements in custody. Only time will tell. There is something called the "faint hope clause" that allows prisoners to apply for parole after 15 years served - but it is well named, as this opportunity rarely results in earlier parole.

Whether either accused will receive a consecutive, rather than concurrent, life sentence remains to be seen, as the specifications around consecutive sentences changed on the initiative of the Harper government, but as I understand it, the decision is in the hands of the sentencing judge who has much latitude here.

As for DM being a dangerous offender -- he clearly is one, and I suspect he has committed other serious crimes, possibly including homicide, that we haven't heard about. But he will not be declared a "dangerous offender" under the law. That is because such a classification is redundant in a case like this. He is already sentenced to life in prison, and one sentence for M1 or three, he is unlikely ever to be released. The "dangerous offender" designation is designed for violent or predatory criminals who repeatedly prey on others, have multiple convictions, but whose offences yield sentences far shorter than life and who can therefore look forward to being released - to strike again.

See this explanation of the term, and then the very interesting list of offences which can engender this classification:

https://www.publicsafety.gc.ca/cnt/...nst-hgh-rsk-ffndrs/dngrs-ffndr-dsgntn-en.aspx

and

http://criminalnotebook.ca/index.php/List_of_Dangerous_Offender_Designated_Offences

A propos of a couple of other posts re included offences - I remember that in the Sammy Yatin case, the police officer was charged with 2nd degree murder but the jury convicted him of attempted murder, so attempted murder seems to be an included offense as affirmed also by this source (you have to scroll down a ways):

http://criminalnotebook.ca/index.php/Murder_(Offence)#Lesser_Included_Offences

I wish we could see the text of the judge's charge to the jury - it is bound to be both interesting and very informative.

 

[JuneBug67]

MS, being convicted of murder with a life sentence, is not now and never will be "entitled" to release on parole at any time. The 25 years is the length of time before he will be eligible for parole, but it doesn't suggest or indicate that parole will be granted, then or ever. While most murderers do eventually get released, and in fact have a very low rate of recidivism, those with a history of criminal and/or violent behaviour, psychopathy, drug abuse etc. are unlikely to meet conditions for parole. Those who are paroled are on parole and subject to strict conditions for the rest of their lives.

So MS might meet those conditions in the future. He has some things going for him, including family support and some demonstrated willingness to better himself, as evidenced by his academic achievements in custody. Only time will tell. There is something called the "faint hope clause" that allows prisoners to apply for parole after 15 years served - but it is well named, as this opportunity rarely results in earlier parole.

Whether either accused will receive a consecutive, rather than concurrent, life sentence remains to be seen, as the specifications around consecutive sentences changed on the initiative of the Harper government, but as I understand it, the decision is in the hands of the sentencing judge who has much latitude here.

As for DM being a dangerous offender -- he clearly is one, and I suspect he has committed other serious crimes, possibly including homicide, that we haven't heard about. But he will not be declared a "dangerous offender" under the law. That is because such a classification is redundant in a case like this. He is already sentenced to life in prison, and one sentence for M1 or three, he is unlikely ever to be released. The "dangerous offender" designation is designed for violent or predatory criminals who repeatedly prey on others, have multiple convictions, but whose offences yield sentences far shorter than life and who can therefore look forward to being released - to strike again.

See this explanation of the term, and then the very interesting list of offences which can engender this classification:

https://www.publicsafety.gc.ca/cnt/...nst-hgh-rsk-ffndrs/dngrs-ffndr-dsgntn-en.aspx

and

http://criminalnotebook.ca/index.php/List_of_Dangerous_Offender_Designated_Offences

A propos of a couple of other posts re included offences - I remember that in the Sammy Yatin case, the police officer was charged with 2nd degree murder but the jury convicted him of attempted murder, so attempted murder seems to be an included offense as affirmed also by this source (you have to scroll down a ways):

http://criminalnotebook.ca/index.php/Murder_(Offence)#Lesser_Included_Offences

I wish we could see the text of the judge's charge to the jury - it is bound to be both interesting and very informative.

The Harper government got rid of the faint hope clause during that same “tough on crime” push that saw the concurrent/consecutive sentencing guidelines change. It’s grandfathered for those convicted when it was still the law, but neither DM or MS will be eligible to apply. The faint hope clause was intended mostly as an incentive/support for rehabilitation, and I think the change was unfortunate.

Although attempted murder is indeed a lesser included offence of murder in certain less common situations, that’s not what happened to Forcillo. The attempted murder charge was actually an additional charge added a year after he killed SammyYatim. It was a brilliant masterstroke and an example of how the Crown can advantage themselves by what they offer to the jury as options, as we were talking about earlier. He was not guilty of the initial murder, presumably as that action was determined to be permissible in his role as a police officer. The attempted murder conviction was for what he did after the first volley of shots. Sammy was already dead, so he couldn’t be killed again, but because the cop didn’t know that at the time he was convicted of trying to kill him with the excessive shots after he was already down. It was at once a nonsensical and a brilliant verdict. It supported police in their life and death decisions made in the moment but strongly condemned the grossly excessive force that Forcillo used.

On a related note, Forcillo’s bail was just pulled for a violation and he will now be in prison until his appeal sometime next year.

 

[Oreck]

Thanks for this information. Definitely, DM is a violent dangerous offender. I also think MS is violent and not sure he would not re-offend. He has many years to serve yet so might bring about some realization to the crime he committed and remorse. I heard on a group that Millhaven which is where they will probably be, now has no more segregation. That means Barnardo and Rafferty are no longer in segregation? If there is no segregation that would be another reason to not testify and rat out someone. It would not be looked at very favorably in prison.

I didn't know that about Millhaven, thanks for the knowledge. Not that I will ever need or use it. We must keep in mind, Mark S never had a day that wasn't clouded with marijuana in his thinking since he was 12 or14 years old. He might really be a decent guy.
What a terrible thing to wake up to after a month in prison.
Put me in mind of Steve McQueen in the final scene in The Sandpebble when he said "what the hell went wrong".

 

[Just4TB]

Thanks for this information. Definitely, DM is a violent dangerous offender. I also think MS is violent and not sure he would not re-offend. He has many years to serve yet so might bring about some realization to the crime he committed and remorse. I heard on a group that Millhaven which is where they will probably be, now has no more segregation. That means Barnardo and Rafferty are no longer in segregation? If there is no segregation that would be another reason to not testify and rat out someone. It would not be looked at very favorably in prison.

Although CSC does not make prisoner locations public, msm sources say that Paul Bernardo is now incarcerated at Port Cartier Institution, as are Rafferty and Williams.
Protection of inmates, while incarcerated, is a CSC responsibility. Bernardo, and Rafferty are absolutely not in General Population for that reason.

Source: http://torontosun.com/2013/06/21/mi...ison/wcm/fe1761c0-2bb7-4f6e-a715-d8397fe87b00

 

[clefk27]

First time poster. It seems beyond belief to me that 14 jurors were found with no knowledge of the TB case or the 2 perpetrators. What planet have they been living on? And what a delicate charade it has been to dance around the obvious fact that these 2 are already convicted killers.

 

[bambam22]

First time poster. It seems beyond belief to me that 14 jurors were found with no knowledge of the TB case or the 2 perpetrators. What planet have they been living on? And what a delicate charade it has been to dance around the obvious fact that these 2 are already convicted killers.

don't be shocked at this....I can't believe how many people I talk to who do have almost zero knowledge of the TB murder case or the 2 perpetrators....some people simply don't follow the news at all