Expert witnesses are not always right                                            

I have heard it said on occasion that an expert (ex-spurt) is a has-been and a drip under high pressure. That statement definitely fits the self-proclaimed expert witness whose name is Mark Totten. In my opinion, when he testifies in court, his testimony has about as much legitimacy in a case that a babbling toddler would have. I will give you some of his testimony further in this article. 

Gang culture and the murderous violence it promotes are unavoidably central features of the factual matrix of a trial.  Thus, it is necessary to “equip the jury with all relevant, reliable information available and needed to arrive at a correct verdict, while avoiding exposure to information that could invite a verdict based on the jury’s understandably negative reaction to those who are part of the gang culture. 

 When admitting expert evidence, caution is required to ensure that it does not “swallow whole the fact-finding function of the court, especially in jury cases. The manner in which expert opinion evidence is presented to the jury and the use that the jury  makes of that evidence is extremely important. In coming to grips with this challenge, trial judges adopt a two stage approach. In the first stage, the court must ensure that the basic preconditions for the admissibility of expert evidence are satisfied. Assuming the evidence passes that hurdle, the court must go on, at the second stage, or so-called “gatekeeper”, stage, to engage in a cost/benefit analysis with a view to deciding whether the evidence is “sufficiently beneficial to the trial process to warrant its admission despite the potential harm that may flow from the admission of the expert evidence.

However, there is a third stage and perhaps the most important hurdle that a judge is faced with and that is the legitimacy of the evidence.  If it is bogus and the jury nevertheless believes it, it could do considerable harm to the defendant. In the past, many defendants in criminal trials have been convicted of crimes they didn’t commit and subsequently spent many years in prison as a result and it was because of flawed expert testimony used against them during their trials.   

As a general rule, the admission of expert evidence in one case does not necessarily have precedential value in later cases, however, the fact that opinion evidence proffered in one case that is identical, or nearly so, to accept opinion evidence previously held by appellate courts to be properly admissible can be risky at best if the expert testimony has been flawed right from the beginning.  

  Warren Abbey has been tried twice before a judge and jury for the first degree murder of a young man named Simeon Peter. At his first trial Abbey was acquitted. At the second trial—after the Crown (prosecutor) successfully appealed his acquittal and obtained an order for a new trial, Abbey was convicted. He then subsequently appealed his conviction.

I will state from the get-go that it is not my intention to offer an opinion in this article at this time as to whether this man was rightly convicted of the murder he was accused of because I have no proof that he is really guilty of that crime. I simply don’t know. However, if he gets another trial, I will then publish the results as an additional ad on at the end of this article.

The main issue at both trials was the identity of the murderer who really killed Simeon Peter? And the Crown’s theory at both trials was identical to wit;  Abbey, who was an associate of a street gang, shot and killed Peter because he believed—though mistakenly  that Peter was a member of a rival street gang.

However, the Crown’s evidence against Abbey at the two trials differed in one important way. At Abbey’s first trial, the trial judge ruled that the Crown’s expert on gang culture, Mark Totten, could not give an opinion on the meaning of a teardrop tattoo, which Abbey had obtained under his right eye some four months after the murder.

The Court of Appeal overturned the trial judge’s ruling with respect to Totten giving evidence about the meaning of a teardrop tattoo on the face of Abbey who was prior to his trial, a young male gang member.

Totten had testified that a teardrop tattoo meant one of three things: the wearer of the tattoo had lost a loved one or was a fellow gang member; the wearer had spent “hard” time in prison; or the wearer had murdered a rival gang member.

Then, Totten buttressed his opinion with a powerful set of statistics, which were drawn from six studies he authored between 1995 and 2005, and which the Crown relied on to argue Abbey had obtained a teardrop tattoo to signify he had killed a rival gang member.

   On this appeal Abbey’s lawyer sought to introduce fresh evidence to impeach the credibility and reliability of Totten’s statistical evidence. He argued that the fresh evidence has three components—the evidence of Totten elicited by the Crown in an unrelated murder trial, R. v. Gager, which took place after Abbey’s second trial; eight research studies on street gangs conducted by Totten, of which six predated Abbey’s two trials and formed the basis for Totten’s statistical evidence on teardrop tattoos; and data from Statistics Canada on the number of homicides in Ontario.

  Almost all of the information on which Totten was cross-examined during the Gager trial, including the six research studies he relied on for his opinion, were available to the defence before Abbey’s two trials. Yet the defence chose not to adduce this evidence at either trial, and instead took a different approach to Totten’s cross-examination. Thus, whether to accept the fresh evidence as admissible, it turns on its strength and on the effect of Abbey’s lawyer’s failure to adduce it at trial.

Abbey’s appeal lawyer submitted that the fresh evidence shows that Totten’s trial evidence about teardrop tattoos to be fabricated, or at least unsupported by the six studies he claimed he relied on. Thus the fresh evidence is sufficiently strong enough that if the trial judge had the benefit of it, Totten would not have been qualified as an expert on the meaning of a teardrop tattoo and the jury would not have heard his evidence. The absence of Totten’s evidence could reasonably be expected to have affected the verdict. The appeal lawyer argued that the defence lawyer’s failure to adduce this evidence at trial should not bar its admissibility on appeal. The interests of justice warrant its admission to prevent a miscarriage of justice. Abbey appeal lawyer asked that the appeal court overturn his client’s conviction and enter an acquittal, or at least order a new trial.

For the most part the Crown didn’t challenge the fresh evidence. But the Crown submitted that the fresh evidence would not have the effect of disqualifying Totten as an expert witness. At most, it might affect the weight a jury would give to his evidence. Most important, the fresh evidence should not give this court any concern about the reliability of Abbey’s conviction or the possibility of a miscarriage of justice. The defence made a tactical decision not to adduce this evidence at trial and should not be entitled to revisit that decision on appeal. The Crown asked that Abbey’s application to introduce fresh evidence and his appeal be dismissed

Although this appeal turned almost entirely on Abbey’s layer’s fresh evidence application who also submitted that the trial judge made one error in his charge to the jury by failing to instruct the jury not to consider Totten’s evidence on the timing of obtaining a teardrop tattoo. The issues on this appeal could therefore be stated as follows:

 (1)         Is the fresh evidence sufficiently strong enough to have disqualified Totten from giving expert evidence about the meaning of a teardrop tattoo?

(2)         Would the absence of Totten’s evidence reasonably be expected to have affected the verdict?

(3)         Does the defence’s failure to adduce the fresh evidence at trial affect its admissibility on appeal?

(4)         Did the trial judge err by failing to instruct the jury not to consider Totten’s evidence on the timing of obtaining a teardrop tattoo?

(5)         What is the appropriate remedy?

The court of appeal judge who wrote the opinion of the court is as follows:

 “I would answer “yes” to the questions posed in issues 1 and 2, and “no” to the questions posed in issues 3 and 4. In essence, I have concluded that the fresh evidence shows Totten’s opinion evidence on the meaning of a teardrop tattoo to be too unreliable to be heard by a jury. If the trial judge had known about the fresh evidence he would have ruled Totten’s evidence inadmissible. And the absence of Totten’s evidence would reasonably be expected to have affected the jury’s verdict. I would admit the fresh evidence, allow Abbey’s appeal, overturn his conviction and order a new trial.”  unquote          

I should point out that in the new trial, there will be other evidence submitted against Abbey.

The first trial took place in 2007. During that trial, the Crown relied on the evidence of three other Malvern Crew gang members, each of whose evidence implicated Abbey as the shooter. The trial judge ruled that neither Totten nor the three gang members could give evidence about the meaning of a teardrop tattoo because the evidence was too unreliable.  

 The second trial took place in the winter of 2011. The Crown led footprint impression evidence, cellphone tower evidence and the evidence of several eyewitnesses, including Peter’s girlfriend, who was walking ahead of him when he was shot. None of this evidence, however, conclusively pointed to Abbey as the shooter. Indeed, none of the eyewitnesses could identify Abbey as the shooter, and the trial judge commented to the jury that their evidence was “particularly unclear and confusing”. Thus the two principal components of the Crown’s case were the evidence of the three Malvern Crew gang members, Sams, Burton and Williams, implicating Abbey, and the evidence about the meaning of a teardrop tattoo.

Sams, Burton and Williams gave potentially compelling evidence against Abbey. Sams testified that during the morning of the murder he was in Burton’s car and they were driving in the Morningside Avenue and Sheppard Avenue East area when they saw a girl, Clorie-Ann Anderson, whom they recognized, together with a male wearing a hood and a bandana. Sams thought that the male might be a member of the Galloway Boys. They decided to approach the male but wanted a gun before they did so.

They then went to Abbey’s house and told him whom they had seen. Abbey got in the car with them. As they were driving they saw Anderson and the male on the bus. They followed the bus and watched the two as they got off. Abbey then got out of the car and walked away. Sams saw Abbey the next day and asked him what had happened. Abbey said he thought the guy had a gun and was pulling it out so he shot him.     

  

Burton gave a different account of what happened the day of the shooting. On his version, Abbey was with him and Sams from the outset. Burton was driving; Sams was in the front passenger seat and Abbey was in the backseat. At the intersection of Morningside and Sheppard East they saw Anderson with a male in a fur jacket and a hood, and wearing a bandana over his face. Burton believed him to be a member of the Galloway Boys. Abbey then said he wanted to visit a friend. So Burton dropped him off. Burton claimed that no one in the car said anything about having a gun or wanting to get a gun. And he also said that Sams never asked to go to Abbey’s house to get a gun.

Within days of the shooting, the media began circulating details and pictures of the car believed to have been involved in the shooting. Burton at first believed the car to be his which was a bright blue Honda. He wondered why a car similar to his was in the news so he questioned Abbey. Abbey denied he had anything to do with the shooting and said if the police contacted Burton “just don’t say anything”. Abbey, however said the guy who was shot had robbed him two weeks earlier. Burton then confronted Abbey and accused him of being the shooter. Abbey replied he was “not going to really say if it’s me or not.”

 The Crown then refreshed Burton’s memory with the statement Burton had given to the police incriminating Abbey. And Burton acknowledged Abbey had told him that he had followed the victim to Caronia Square, pulled out a gun and fired a couple of times shooting the victim in the leg. The victim started running away and Abbey shot him again, then stood over him and shot him a few more times. He pointed the gun at Anderson but realized it was empty so he fled.

 Williams testified that in the summer of 2004, while in custody, he questioned Abbey about the shooting. Williams claimed Abbey told him four people were involved but the others were “afraid to do what had to be done, so he took it into his own hands and did it”. Williams said Abbey told him he shot the person in the leg and then shot him again. He tried to shoot Anderson but his gun was empty. He then ran back to his house.  

Despite their evidence implicating Abbey, the testimony of Sams, Burton and Williams was problematic for the Crown. Sams’ and Burton’s accounts of the incident differed. What Abbey apparently told each of the three also differed. And most important, each was a most unsavoury witness, and Sams and Burton had made a deal with the Crown to testify.

Although Williams had not made a deal with the Crown, he was a jailhouse informant with a lengthy criminal record. At the time of the murder he was serving a twelve-year sentence for a home invasion robbery at gunpoint. He defied a court order and refused even to testify at Abbey’s second trial. His evidence from the first trial had to be read in to the jury.

  Sams and Burton did testify for the Crown but only in exchange for immunity from prosecution for numerous serious offences, many arising from a police raid on the Malvern Crew known as Project Impact.

In my opinion, criminals who testify after being given immunity from other crimes they committed, their testimony becomes highly suspect.

Abbey is going to trial again in the future and no doubt that trial will be a very interesting one. When it is over, I will submit another article in my blog on the Abbey saga.