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Exclusion of evidence sparks debate

People who spent years investigating the murders felt jury members would have reached a verdict of first-degree murder if they had received all the information

Globe and Mail Update

NEW WESTMINSTER, B.C. — Three court rulings significantly reduced the evidence before the jury that convicted Robert Pickton of second-degree murder earlier this month.

Mr. Justice James Williams tossed out a charge of murder against Mr. Pickton in early 2006 without hearing any evidence, deciding the formal indictment was improperly worded.

Months later, he excluded another 20 murder charges in an effort to make the process more manageable for jurors.

The restrictions were compounded by a third ruling shortly before the jury withdrew to consider the verdict. The judge instructed the jury to ignore evidence important to the prosecution from more than 20 witnesses.

The verdict left a bitter aftertaste for those who spent years investigating the depraved murders of Mr. Pickton. They felt jury members would have reached a verdict of first-degree murder if they had received all the information.

A court order prohibits the media from publishing some of the evidence that was subject to review by the court in order to protect Mr. Pickton's right to a fair trial on 20 additional murder charges.

Judge Williams released summaries of two of the three rulings and banned publication entirely on several applications on the admissibility of evidence. Media outlets have challenged the publication bans and their application is expected to be heard in January.

The tenor of the trial was set on the first day in court, on Jan. 30, 2006.

Mr. Pickton was asked to enter a plea on 27 charges of first-degree murder. He entered a plea of not guilty on 26 charges and declined to enter a plea in response to the charge of murdering a woman known as Jane Doe.

His lawyers applied to have the charge dismissed before the jury was selected. Later, the jury heard that a portion of Jane Doe's skull was discovered 30 kilometres away from the Pickton property.

Police could not identify her. But experts concluded that marks on the skull were similar to saw marks on the bisected skulls of three women found on the Pickton farm, Andrea Joesbury, Sereena Abotsway and Mona Wilson. Also, investigators discovered DNA profiles on two bones found outside the slaughterhouse on the Pickton property that matched the DNA profile of the Jane Doe skull.

However, the experts could not determine when the woman was killed. The murder charge stated that she was killed on or before Feb. 23, 1995, the date that her partial skull was found. Judge Williams decided the charge failed to meet the minimal requirements of the Criminal Code. "Accordingly it must be quashed," he stated.

The prosecution team insisted the ruling did not weaken its case against Mr. Pickton. "The evidence has not changed," said Crown counsel spokesman Stan Lowe.

"It's a positive step in the defence of Mr. Pickton," said defence lawyer Adrian Brooks.

The ruling on Aug. 9, 2006, set aside a huge pile of evidence. Judge Williams ruled in favour of a motion to divide the remaining 26 murder charges into two trials, with the first considering only six deaths.

In a three-paragraph summary of his ruling, he stated that a trial on 26 murder charges would impose "an unreasonable burden" on jury members. He cited as reasons the volume and nature of the evidence, the complexity of the legalities and the length of a trial expected to continue for two years.

Geoff Gaul, a spokesman for the prosecution at that time, said the ruling was not based on the strength of the prosecution's case. "None of the charges have been dismissed," he said.

Mr. Brooks welcomed the ruling.

A few months later, the trial began. The prosecution moved ahead with its case within the restrictions imposed by court rulings on the admissibility of evidence.

Witnesses were called to tell the jury about finding remains of six women within metres of Mr. Pickton's residence and about Mr. Pickton's lifestyle. The prosecution also called witnesses to testify about the Jane Doe bones, taking advantage of a legal process called similar-fact evidence. More than 20 witnesses testified about the Jane Doe remains.

After the jury heard it all, Judge Williams decided the testimony did not meet the legal standard required to introduce the evidence. He told the jury to ignore all the evidence on the Jane Doe skull.

Both Crown prosecutors and defence lawyers withheld their comments on the impact of the second Jane Doe ruling.

However, former lead investigator Don Adam said last week he was disappointed with restrictions imposed by the court that limited the information available to the jury. Mr. Adam was convinced that Mr. Pickton would have been found guilty of first-degree murder if only the jury had heard all the evidence.

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