In the second-degree murder trial of Robert Steven Wright, charged and now convicted in the 1998 stabbing death of Renée Sweeney, anything discussed while the jury was excused was covered by a publication ban. Now that a verdict has been rendered, the information discussed during those voir dire hearings is now public, and could form the basis for Wright’s appeal. Defence attorney Michael Lacy indicated he planned to appeal while speaking to the media after the verdict on March 29.
Lacy also stated that he felt the Crown’s closing arguments were prejudicial.
“The jury doesn't know this, but the Crown's closing argument to the jury was often prejudicial. It needed to be corrected. Otherwise, there was a real risk of a miscarriage of justice and the real possibility the fairness of the trial was compromised."
Lacy once again stated he felt the jury should have had reasonable doubt.
“I can only assume that what happened was the jury was affected by what we say was a very improper closing” by the Crown, he said.
Before an appeal can be filed, Wright will need to face sentencing. Lacy said he would respect that process, and Justice Robbie D. Gordon’s sentence, “but of course, there's also appellate-level courts that may have to take a look at this case now, as a result of the Crown's conduct.”
There were several submissions from the defense throughout the trial. Here are just a few.
Manslaughter
The defence asked the judge to allow the jury the option of considering manslaughter as one of the charges when they were ready to begin deliberations.
Manslaughter implies the perpetrator didn’t intend to kill the victim, even if they meant to harm them.
In response, Parsons argued that the facts of the case make it hard to justify a manslaughter charge, that the perpetrator did not mean to kill Sweeney. “There were 27 stab wounds, is that anything but intention?” he asked Gordon.
Gordon agreed with the Crown, and would only allow the jury to convict or acquit on charges of second-degree murder.
The almost mistrial
Early in the trial, March 6, there was a day spent dealing with what Lacy felt was an attempt to “influence the jury.”
However, when the judge later made statements to the jury about the reason behind the delay, Lacy asked that the actual reason be left out, especially as “it would look like the defence wanted to waste the day.”
When the jury returned, Gordon told the jury that there was a matter that came to attention that needed to be “appropriately investigated.”
That matter was a windshield-sized car decal, featuring two gavels and the words: “Guilty AF”. The investigation that took place surrounded the possible fairness of the trial. Lacy felt it was an attempt to influence the jury, especially because the vehicle was parked in the parking lot next to the jury entrance. Gordon took time to review the security video of the parking lot to see how many jurors had seen the decal, spoke with each one individually — not mentioning the decal but asking if they had seen “anything” that morning — before determining that the jurors had not been unduly influenced and could still preside over the trial.
Wright remained silent
Based on legal precedent and the rights of the accused, Wright could not be questioned about his actions, or lack thereof, in the intervening years between Sweeney’s death and the day he was arrested.
Therefore, after submissions to Gordon from the two lawyers, Lacy and Crown attorney Rob Parsons, the Crown was told that during their cross-examination of Wright they could not ask why he failed to respond to the public appeal for information, or why he failed to share his story with the police in the years that followed – that he found Sweeney already dead and in a panic, fled the scene. The Crown could question Wright’s immediate actions, and “had he ever told anyone.”
The Crown did ask that question of Wright on March 14, or a form of it. Parsons asked Wright if he’d seen any pictures of the jacket, which Wright said he had seen on a poster but hadn’t discussed with his family. Parsons asked if there was discussion about the composite photo. “How about the composites that are ultimately released,” asked Parsons. “Any discussion had with your loving parents, who you trust and turn to up until that day in your time of need. Any discussion?”
“Only with my brother,” replied Wright. “We made jokes … about it looking like his friends.”
Parsons did not ask if Wright told ‘anyone’; he asked if he told his family.
However, during his closing argument, Parsons repeatedly stated that Wright stayed silent “for a quarter of a century,” a statement, according to Lacy, for which no evidence had been introduced.
Justice Gordon agreed with Lacy and detailed that section of his instructions to the jury, but Lacy still felt the damage to the fairness of the trial had been done.
The amount of DNA
On March 10, the Crown called to the stand Renata Dziak, an expert in forensic DNA and “transferring persistence,” what Dziak described as the evaluation of how DNA is transferred.
During voir dire the day Dziak testified, Lacy stated he believed she was a biased witness, though he did not give his reasoning at the time. He stated he was “concerned this witness would attempt to shift evidence in a way that will help the Crown.”
During the trial, there was no direct evidence that Sweeney scratched Wright. His DNA was found inside the container her fingernails had been stored in since her post-mortem was conducted, clipped by retired Sudbury Regional Police forensic officer Sergeant Leo Thibeault and pathologist, Dr. Kelly Uren.
Wright’s DNA was on what was described as “debris” by Dziak and Tara Brutzki, the witness who testified she identified Wright as the source of the DNA.
It was clearly stated through the trial that the DNA was not found ‘underneath’ Sweeney’s fingernails, but on, or “associated with” per Lacy.
In his opening statements, Parsons stated that the presence of DNA is consistent with Wright having been scratched by Sweeney, but added that “everything I’ve said is not evidence, it is what you are expected to hear. Don’t take what I’m saying as evidence. All of the evidence must be considered in determining whether the Crown has met that burden.”
When Dziak was on the stand, Parsons put to her a hypothetical, noting that she is unable to say how the DNA was deposited, or when.
“Is this consistent with someone trying to offer first aid and she (Sweeney) came into contact with that person?”
“I can’t rule that out,” Dziak replied.
“How about alternative propositions?” said Parsons. "You can’t say that it is more or less likely that Ms. Sweeney was trying to fight off an attacker.”
“That is also a possible explanation,” Dziak testified. “However one of those scenarios is not more likely than the other.”
She then detailed the amounts of DNA found, in nanograms. The nail itself had 11 nanograms, the debris had 73 nanograms. Parsons asked her if she would consider that to be a large quantity of DNA.
"I would consider it to be a large amount of DNA," she said of the debris. "The majority of the population does not have foreign DNA under their fingernails, just walking around."
Dziak said she only encountered this amount of DNA “in under five cases,” and noted that even if she only tested the sample directly from the fingernail, not the debris, she would have the same opinion.
Parsons referred to “under five cases” frequently through his closing, stating this quality and quality of DNA is in the top 5 cases she’d seen. Lacy felt that because this information did not enhance the information she already gave, it was “already factored in” to her opinion and that he attempted to “bootstrap” the opinion by repeatedly referring to it.
Parsons also referred to the hypothetical he put to Dziak during his closing. However, Lacy felt he mischaracterized her evidence. Dziak testified that Wright came into contact with Sweeney’s fingernails “somehow.” During his closing, Lacy took issue with the Parsons suggesting that Dziak was “almost pleading” during her testimony to be asked about specific scenarios, but that the defence refused to allow her, and that had Wright’s testimony been provided to her (she testified for the Crown, in advance of Wright’s March 13 testimony) “I think you know what her answer would be,” which Lacy stated was an invitation to the jury to speculate on her evidence.
Lacy submitted his argument as an objection to Gordon. Because the Crown had the option to recall Dziak after the closing of the defence’s case, but decided not to, Lacy stated, and Gordon agreed, that it was not appropriate to then raise the issue with the jury. He included a provision to his instructions to the jury, but Lacy did not feel it was strong enough.
Virtual medical impossibility
One of Parsons' main arguments was that Sweeney was still alive when two people entered the store. In his closing arguments, Parsons referred to the testimony of the male witness who, along with his fiancee, first saw Wright leaning over Sweeney. Their names are covered under a publication ban. The male witness testified on Feb. 24 that he saw Sweeney move her head to the right, and he took that to mean she was still alive.
This was important testimony for the Crown as the exact moment Sweeney was attacked is unknown. If the male witness was correct, Sweeney was still alive when Wright ran past them. Parsons told the jury that the testimony of this male was more reliable, because his statement was taken within three hours of Sweeney’s death on Jan. 27, 1998.
However, according to Lacy, that testimony is contradicted by the testimony of pathologist Dr. Kelly Uren, because of what Lacy called a “virtual medical impossibility.”
The fatal stab wounds Sweeney endured completely severed her sternocleidomastoid muscle, which is connected at the base of the neck and controls neck movements from side to side.
Uren testified that the voluntary movement of Sweeney’s neck would be “extremely difficult, if not impossible.” Lacy said the Crown attempted to use this movement to indicate that Sweeney was still alive at the time the male witness entered, which he said was not grounded in facts.
Shoeprints outside the store
There were Brooks shoe imprints left in the bathroom at the video store where Sweeney was killed. While a size could not be determined, it was easy to see the Brooks label in the photos of the show prints entered as exhibits. The comparison does not require an expert. However, because of the way shoes are made, any comparison other than this “gross design” could result in error if not done properly, said Sgt. Jeff Myatt, an OPP fingerprint and shoeprint expert, who testified that identifying shoe impressions is a highly specialized skill that a layperson would not be able to do without a large margin for error.
However, during closing arguments, Parsons told jurors that a footprint impression taken from Nepahwin Avenue — and believed to belong to Wright — was similar to prints found in the video store bathroom.
This was the first time the jury heard this information from the Crown. New information is not supposed to be part of closing arguments as the defence has no ability to question the evidence. "The evidence of Insp. Myatt left no proper foundation for the Crown to invite the jury to attempt to compare the impressions and come to the conclusion that the impressions were from the same footwear," Lacy said.
Wright will next be in assignment court tomorrow, April 4, at 10 a.m. to make arrangements for sentencing.
Jenny Lamothe is a reporter with Sudbury.com
