Man tried four times in 1981 murder appeals conviction, seeks stay - InfoNews

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Man tried four times in 1981 murder appeals conviction, seeks stay

March 27, 2019 - 8:37 AM

TORONTO - An Ontario man who was tried four times in the killing of a Hamilton nursing assistant is asking the province's highest court to overturn his murder conviction and put the case on hold indefinitely.

It's been nearly four decades since Diane Werendowicz was attacked on her way home from a night out with friends. The 23-year-old was dragged into a ravine, sexually assaulted, strangled and dumped in a creek.

Robert Badgerow was arrested 17 years later and eventually convicted of first-degree murder, but the verdict was overturned on appeal. Jurors in his second and third trials were unable to reach a verdict.

He was then granted a stay of proceedings but that was revoked by Ontario's Court of Appeal in 2014 after it found evidence about a 911 call had been improperly excluded from previous trials.

Badgerow was tried a fourth time in 2016, this time including the 911 call evidence, and found guilty of first-degree murder.

His lawyers now argue the judge made several mistakes in his instructions to the jury, including in his directions on how to weigh the evidence regarding the call. They say the court should grant Badgerow a stay of proceedings.

"The state has now had the nearly unprecedented opportunity to try the appellant a fourth time for this offence, but has again failed to do so fairly," they say in documents filed ahead of a hearing on Thursday.

"Thirty-seven years have passed since the events and 20 years since the appellant's arrest, over 10 of which he spent in custody. Numerous witnesses have died. Ordering a fifth trial in these circumstances would constitute an abuse of process."

Court documents say Werendowicz had gone out for drinks with friends after work on June 19, 1981, and left the bar around midnight to walk home, which would have taken about 15 minutes.

Her body was found by children playing in the area the evening of June 20, the documents say. A tire covered her head and shoulders but when it was lifted, investigators discovered she had been strangled, and the strap of her purse was around her neck.

Forensic experts found semen on her genitals and her jeans, the documents say. The fly of her jeans was down when she was found, her blouse was unbuttoned and her underwear was found nearby.

Badgerow was identified as a suspect in the late 1990s and his DNA matched the profile from the semen found on Werendowicz.

He has maintained throughout his trials that he had consensual sex with Werendowicz in the back of his truck outside the bar the night she died and that someone else attacked her on her way home.

In the appeal, his lawyers argue the judge gave unfair instructions to the jury regarding the 911 call, which was possibly placed by the killer and traced to a pay phone at a location near Badgerow's workplace. The call, made two days after Werendowicz's body was found, reported that she had been raped before she was killed and that she was strangled with her purse.

"The trial judge's instruction misstated the evidence, misrepresented and then unduly emphasized the supposed reliability of the trace, and failed to mention the significant evidence casting doubt on the trace's accuracy," including the possibility of human error, they say.

They allege the trial judge made several other mistakes, among them his instructions on the risks of voice identification from the 911 call.

The judge's warnings were undermined by his invitation to use "common sense," rather than judicial instructions, in evaluating the evidence and in his failure to refer to specific details in the case they should examine with caution, the lawyers argue.

"It was only after the DNA evidence led to his arrest that people began to come forward purporting to ID the appellant as the caller," they say.

"This evidence was inherently less valuable as a result. The trial judge failed to highlight this critical point for the jury, despite a specific request from the defence that he do so."

The defence also alleges the judge erred in his instructions on how to use a video of Badgerow from his first wedding in 1982.

The judge acknowledged there was no evidence the video accurately captured Badgerow's voice but still told jurors they could compare it to the voice on the 911 call, which was "contradictory," defence lawyers argue.

If a stay is not granted, they are asking for the court to order a fifth trial.

News from © The Canadian Press, 2019
The Canadian Press

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