http://www.thestar.com/news/canada/article/879245--don-t-destroy-williams-evidence-experts?bn=1
"Dont destroy Williams evidence: experts"
October 21, 2010
Michelle McQuigge
The graphic photos and videos documenting the crimes of Col. Russell Williams should be preserved to ensure the convicted killer and sex offender isnt one day set free, legal experts say.
As the former commander of Canadas largest air force base was led off Thursday to begin two concurrent sentences of life in prison with no chance of parole for 25 years, the burning question of how best to handle the most disturbing evidence of his actions was put off for another day.
Prosecutors say they will destroy the Nissan Pathfinder that tied Williams to the murder of Jessica Lloyd, but plan to wait awhile before discussing the possibility of destroying the photo and video evidence, which includes recordings of the two sex assaults and the killing of Cpl. Marie-France Comeau.
Destroying the evidence would be a bad idea, warn legal experts who say the images could one day prevent Williams from being granted parole, or from engaging in fancy legal footwork to secure a new trial.
John Rosen, a Toronto-based criminal lawyer who once defended notorious sex killer Paul Bernardo, said its unlikely Williams would mount an appeal of his convictions, given the fact that he pleaded guilty and appeared resigned to spending the rest of his life behind bars.
But just because a scenario is unlikely doesnt mean it cant happen, warned Rosen. Williams could change his mind at any time, he said.
What if Mr. Williams wakes up one day and says, Wow, I just got railroaded by my lawyer, and hires another lawyer? Rosen said. Even if you think its open and shut, the court would be obliged to consider the appeal.
Two sets of evidence are at play, since the rules are different for exhibits that comprise part of the formal court record, as opposed to evidence that investigators used to build a case, but did not present formally.
Rosen said evidence shown during the plea and sentencing hearings must stay in court custody for the minimum 30-day appeal period and theres always the possibility of an extension being granted. Those exhibits are usually returned to the lawyer who submitted them, and held indefinitely.
Once the appeal windows are closed, evidence that was not shown in court such as the video recordings of Williams crimes can be destroyed at the discretion of the legal team.
Prosecutors dont usually exercise that right, said Rosen. Instead, they choose to put the evidence into storage in case its needed at a later date. Police say Williams computer, which contains the incriminating images, will remain under lock and key until a formal decision is made.
Since the Crown did not present the videos as evidence at the hearings, they likely could be destroyed without much legal wrangling. But that doesnt mean its a good idea, Rosen warned.
I would be reluctant to destroy original evidence because we dont know whats coming in the future.
James Morton, a professor at York Universitys Osgoode Hall law school in Toronto, described a scenario in which prosecutors would one day regret having destroyed vital evidence.
Lets look ahead 25 years, Morton said. (Williams has) survived, hes been a model prisoner, hes expressed complete remorse, and were now looking at this (elderly) person whos spent the past 25 years reading the Bible. This video, and the related evidence, is the sort of thing the parole board would look at and say, Yes, we could grant parole, but were not going to.
The images could also be used to refute an insanity defence should Williams ever try to mount one, Morton added. Appeals are often filed well after the official deadline has expired, he said.
Its not the first time Canadian jurisprudence has wrestled with the contentious issue of graphic video evidence.
In 1995, when Bernardo was convicted of two counts of first-degree murder in the sex killings of schoolgirls Kristen French and Leslie Mahaffy, videotaped recordings of the assaults comprised key evidence that not only sealed Bernardos fate, but exposed his ex-wife, Karla Homolka, as a willing accomplice and participant.
The tapes were also at the centre of a subsequent trial for Ken Murray, Bernardos original lawyer, who was charged with obstruction of justice for failing to disclose to the Crown the existence of the tapes, which were not discovered during an exhaustive police search of Bernardos southern Ontario home.
The fact the tapes existed wasnt revealed publicly until after Crown officials made their infamous plea-bargain deal with Homolka the so-called deal with the devil in which she agreed to plead guilty to two manslaughter charges and spend 12 years in prison in exchange for her testimony against her ex-husband.
Murray who retrieved the tapes at Bernardos direction in 1993 and held them for more than 16 months before disclosing them to Rosen, his successor was acquitted in 2000. Amid pressure from the families of the victims, the tapes were destroyed in December 2001.
Homolka was released in 2005. Bernardo was declared a dangerous offender, a designation that keeps him behind bars indefinitely. Crown prosecutors say they dont plan to seek dangerous-offender status for Williams because they dont believe hell ever be set free.
Rosen, who is among the few people who ever saw the Bernardo tapes, said its easy to understand why families would want such evidence destroyed.
Its a violation of the memory of the deceased, Rosen said. Im sure they would feel that they were being used or abused again, and that they were being victimized again. And I can see that theres a lot of truth to that.
Morton said he, too, is sympathetic to the families of the victims, and understands why they would want to see the photos and recordings destroyed. Justice, he warned, would be better served if they were not.
Its highly unlikely that anyone will argue that Col. Williams was a wrongfully convicted individual, but theres no reason to destroy this evidence."