Judge's mistakes <Sherman Hood's> in murder case quash conviction, Jun 17, 2004

2004-07-17  Judge's mistakes <Sherman Hood's> in murder case quash conviction

Ian Mulgrew. The Vancouver Sun. Vancouver, B.C.: . pg. A.1

B.C. Supreme Court Judge Sherman Hood bungled so badly his instructions to a jury that a putative sexual predator has had his first-degree murder conviction quashed.

In a unanimous but shocking 10-page ruling released Wednesday, a three-judge B.C. Court of Appeal panel said a new trial was essential because of the errors made by the 15-year veteran of the bench.

But Justice Jo-Ann Prowse did not once use Hood's name in criticizing him for making a jury sit from 9 a.m. until 9 p.m. while he lectured them on the law and their job.

"Remarks made by the trial judge and by counsel when the charge was completed indicated that it was an exhausting experience for them," Prowse wrote in the decision endorsed by Chief Justice Lance Finch and Judge Ian Donald.

"It must have been equally exhausting for the members of the jury."

No kidding.

More than Hood's loose tongue, this appellate decision also brings into focus the horrendous problem facing trial judges who must instruct juries.

The Supreme Court of Canada has made decision-making in criminal trials so onerous and so abstruse many judges have trouble explaining the process.

This case takes the cake as an egregious example of what can go wrong in our legal system and the extraordinary costs involved -- emotionally to victims' families and financially to taxpayers for two separate botched trials in 2001.

It's hard to believe so many mistakes could be made in the case involving a former tow-truck driver once touted as a suspect in Vancouver's missing women murder investigation.

Lance Dove, now 37, admitted slaying Kim Tracey after a night drinking in 1999, but maintained it was manslaughter, not murder.

His roommate, David Sjostrom, testified Dove

confessed to killing Tracey as he walked her to the 22nd Avenue SkyTrain station because "the bitch would not put out."

The petite 28-year-old's body was discovered on the afternoon of Aug. 4, in brambles near the north end of the Queensborough Bridge.

An autopsy found she died of strangulation and blunt force trauma to her head. Her face was beaten so badly she was unrecognizable.

Her family was outraged because Vancouver police were too slow to arrest Dove on an earlier sexual assault -- a charge that was stayed after a mistrial in 2001.

During the murder trial, the main issue was whether Dove killed Tracey during a sexual assault and whether he was too drunk to form the intent to commit murder.

He claimed he beat her to death after she "freaked out" and kicked him in the groin following consensual sex.

The murder conviction was probably a no-brainer, but Judge Hood opened his big mouth and indicated to the jury he thought Dove's claim to have been provoked was ridiculous.

"While the trial judge in this case did not directly state his opinion as to Mr. Dove's guilt, he significantly undermined any prospect of success on the defence of provocation," the appeal court said.

"In effect, the trial judge communicated to the jury his view that the defence of provocation did not merit their serious consideration."

The defence also argued that Hood was cavalier when errors were pointed out at the time, minimizing one significant complaint with a verbal shrug: "Oh, just a small error."

The jury deliberated only seven hours before returning the guilty verdict.

Mitchell Foster, who successfully argued the appeal, said Dove will remain imprisoned until the Crown decides how to proceed.

"He wasn't ordered acquitted," the defence lawyer said.

"If there is a new trial, it would be on the charge of murder because manslaughter was admitted. The Crown will have to decide whether they want to proceed on the murder charge again or discuss a plea on the manslaughter. But I haven't made any bail application at this time."

A spokesman for the B.C. attorney-general's ministry said the appeal ruling is under review and no decision on how to proceed has been made.

imulgrew@png.canwest.com

 

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