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 Bandidos trial not moving |
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A judge denied a bid to move the Bandido homicide trial from London to Toronto because extensive Southwestern Ontario media coverage was equalled in the mega-city
That's among developments that can now be reported on the case following a successful media challenge to a sweeping pre-trial publication ban on the trial of six men charged with first-degree murder.
A 45-day appeal period of a judge's order to lift some of the ban ended yesterday, with no appeals, meaning a sliver of what's happened since the six defendants were committed to trial can be reported.
That includes the dismissal of an application to change the trial venue, and why the trial was delayed from this fall to early next year.
Superior Court Justice Thomas Heeney partially lifted the ban in June after an application by Sun Media, corporate parent of The London Free Press, and the CBC.
The bid to move the trial to Toronto was made in January by defence lawyers. They argued there was too much media coverage in the London area of the Elgin County case.
Heeney, in his Jan. 29 decision dismissing the application, said the case has had heavy London-area coverage, but reporting was equally extensive in the Toronto area.
And there was huge coverage across the country.
Generally, criminal trials should be held in the area where the incidents occurred, he said.
While St. Thomas and the Elgin County courthouse would have been the primary site of the trial, its "woefully inadequate" court facilities couldn't handle the case.
The case was moved to London -- still "local" -- to take advantage of a highsecurity courtroom suited for cases with multiple accused and numerous lawyers.
With that out of the way, Heeney was prepared to start the six-month trial on Sept. 8.
But there was another problem -- one of the accused, Frank Mather, 34, needed to find a new lawyer.
In November, the Crown applied to have his lawyer, Dirk Derstine, removed some two years and five months after Mather and the rest were charged. The Crown contended Derstine had a conflict of interest.
The Crown was successful in December in removing Derstine and his associate, David Steinburg, who had steered Mather's case through the preliminary hearing stage.
Mather hired Gregory Leslie of Toronto, even though Leslie told him he had scheduling conflicts.
Mather did not contact any London-area lawyers.
Leslie informed the Crown on Jan. 8 he was going to be retained, but didn't say he wanted the fall trial date adjourned, even though the Crown had sent him a detailed outline of the schedule.
Legal Aid Ontario accepted Leslie as Mather's lawyer on Jan. 21.
On Feb. 11, Leslie was formally placed on the record. He told Superior Court Justice Peter Hockin he had scheduling problems but, again, not that he was unavailable for the trial.
But by March 31, Leslie indicated he wanted to adjourn the trial date for a year -- to September 2009.
He'd already overbooked the time set aside for three months of pre-trial motions that were to start that day.
During the bizarre hearing, Leslie put his administrative assistant in the witness box to meticulously go through his day book.
Leslie had scheduled lengthy trials and preliminary hearings from spring right through November. In some cases, he was double-booked, even triple-booked.
He also wanted two months clear to prepare Mather's case after November, before starting pre-trial motions. And Leslie had made no effort to adjourn any conflicting cases.
Heeney decided Leslie had taken on Mather's retainer and assumed he would get his adjournment.
"Adjournments should never be taken for granted," he said in his decision, and Leslie should have made his intentions known in January.
"The net result of this, other than the waste of court's time and counsel's time, is a waste of three months time, from January until now, when other counsel might have been found," Heeney said.
The judge noted the "huge volume of disclosure in the case" for review, but added there are many local competent lawyers.
Even if Leslie left the case, "the court's hands appear to be tied," Heeney said, because Mather would have to find another lawyer, pushing back the schedule even further.
Heeney said Mather is entitled to the lawyer of his choice, but that "is not an absolute right" and limited to competent lawyers available to represent their clients "within a reasonable period of time" and without any conflict of interest.
Heeney pointed out there are five other co-accused waiting in custody.
Almost all the other defence lawyers supported the adjournment request, even though none would waive their right to a speedy trial, Heeney noted.
The judge said the Crown was prepared to start the trial last spring and has an interest in getting the case finished.
And "the public has an interest at stake," he said.
There is, he said, "a negative public reaction whenever a highly publicized case is delayed by reason of an adjournment."
"The public sees such delays as a failure of the justice system," he added.
Heeney allowed Mather to keep his lawyer, but wouldn't agree to Leslie's timetable.
"There is simply no justification for putting this case on hold for one entire year," he said.
He pushed pre-trial motions to begin Nov. 17, 2008 and set the trial date to follow immediately on Feb. 23, 2009.
Mather, Wayne Kellestine, 59, both of Dutton-Dunwich, Brett Gardiner, 24, of no fixed address, Michael Sandham, 38, Dwight Mushey, 40, and Macelo Aravena, 32, of Winnipeg are charged with eight counts of first-degree murder.
The victims, George Jessome, 52, of Toronto; George Kriarakis, 28, of Toronto; John Muscedere, 48, of Chatham; Luis Manny Raposo, 41, of Toronto; Frank Salerno, 43, of Etobicoke; Paul Sinopoli, 30, of Sutton; Jamie Flanz, 37, of Keswick; and Michael Trotta, 31, of Mississauga, were connected to the Bandidos motorcycle club.
http://cnews.canoe.ca/CNEWS/Crime/2008/0...228011-sun.html
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25.07.2008 12:05 |
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