'A trial of hearsay'
CRIME / The defence refutes the case against Mendez-Romero James Dubro / Toronto Xtra / Tuesday, March 04, 2008
"It was a strange trial where hearsay evidence was produced as real evidence," defence lawyer Laurence Cohen told the jury in his summation on Mar 3 in the murder trial of Ivan Mendez-Romero.
Mendez-Romero, 38, is charged in connection with the death of his lover, Janko Naglic. Naglic, the original owner of the Barn, was found dead in his home on Oct 26, 2004.
Speaking from a podium set up in front of the Crown's desk facing the jury Cohen told the court that it wasn't up to the defence to solve the crime. "The burden of proof always rests with the Crown and they had to prove their case beyond a reasonable doubt."
Cohen compared the testimony by Naglic's friends and associates to "coffee shop conversation or after-dinner chatter."
"All the evidence in this case comes from Janko Naglic but is given by others to you," he told the jury. "This is at the lower end of the totem pole of evidence."
Cohen argued that the Crown hadn't adequately proven that conversations between Naglic and the many witnesses "actually occurred" and that, while most of the witnesses "were good people," the jury had to first believe that all the conversations described really happened, that they had been "properly recalled" and that Naglic had been telling the truth when relating the stories to the witnesses in the first place.
"The prosecutors," Cohen said, "failed to prove beyond a reasonable doubt [Mendez-Romero's guilt]. In fact, the evidence in this trial is more consistent with innocence than guilt. If you think that Mendez-Romero is probably guilty, then you have to acquit."
Cohen questioned whether a confrontation in Minden between Naglic and Mendez-Romero over Mendez-Romero's relationship with his wife actually happened before arguing that it had "no relation to the murder."
He contended that Naglic and Mendez-Romero "were relatively happy in their relationship," and referred to witness Tim Burke's testimony that Mendez-Romero had behaved in a loving manner toward Naglic at a party just a week before Naglic's death. Cohen also pointed to the trip planned by Naglic for himself and Mendez-Romero to Cuba, to have taken place weeks after his death, as a sign that the relationship between the two men was ongoing despite testimony to the contrary.
He disputed the timeline laid out by the Crown, noting that Mendez-Romero has alibis — accepted as authentic by the Crown — beginning at 9:20pm on the night in question. Referring to the testimony of forensic pathologist Toby Rose, Cohen reminded the jury that the death could have occurred anywhere from 6pm on Oct 26, 2004 to 10am the following morning.
"If Janko Naglic was not killed before 9:20pm on Oct 26, my client is innocent," Cohen said.
Cohen argued that the fact that Naglic made no cell phone calls after returning home on the evening of his death is not proof of anything. "To infer that he was dead can only be base speculation."
He also questioned the Crown's argument that Naglic had not followed his patterns on that evening by removing his boots and letting his dog out of the kitchen.
"How do we know he wasn't going out?" asked Cohen, adding that, if the dog had been left locked in the kitchen for 16 hours, it had managed to do so "without making a mess."
"There is no evidence of what happened between 6:34pm and 9:21pm," Cohen asserted. "You cannot infer that my client is murdering Naglic."
Cohen referred to testimony by Karen Hylton and corroborated by cell phone records that she spoke with Mendez-Romero twice on the evening in question, beginning at 6:15pm and then at 6:34pm. Given this evidence the Crown's timeline "shrinks to four minutes," said Cohen, adding sarcastically that his client must have been on the phone with Hylton while killing Naglic.
Cohen added that Naglic may not even have been killed at his home, something Rose conceded as a possibility in her testimony.
"There isn't a single witness," said Cohen. "You are missing 90 percent of the puzzle."
Cohen argued that the Crown had not proved that the crime could not have been committed by strangers, adding that the back door was found open and that there was no proof that nothing had been taken, only that not everything had been taken.
"How can anyone know how much cash there was in the house?" asked Cohen, adding that Naglic's accountant Tom Ricketts had testified that Naglic skimmed hundreds of thousands of dollars in cash from the Barn.
Cohen derided the Crown's assertion that, after murdering his lover, Mendez-Romero "cooly went out for drinks with his wife, had cognac at the Barn."
Cohen argued that Mendez-Romero knew that "Naglic told everyone his dirty laundry" because Naglic was a "flamboyant extrovert" who told "everyone everything," whereas Mendez-Romero was an introvert who "kept it all to himself." He added that the testimony of Naglic's friends had presented only one side of the relationship.
Of that testimony Cohen noted that the jury was unable to judge the demeanor of Kathy Drury and Bob Grimson, whose testimony from the preliminary trial was read in by the Crown. Drury died of cancer in December 2007 while Grimson was judged too ill to testify.
"Not a single witness can speak to evidence of violence between Mendez-Romero and Naglic," said Cohen, despite second-hand testimony to the contrary. "There was no evidence of violence."
As for the alleged threats made by Mendez-Romero against Naglic, Cohen asked why, if Naglic's friends took the threats seriously, none of them did anything about it.
"Did they not take it seriously?" asked Cohen. "Or perhaps Janko didn't take it seriously? If Naglic took the threats seriously, why did he walk into his place where he was going to be killed?
"Naglic was not afraid of my client. Often his words were contrary to his actions," said Cohen, adding that it was "not logical for Naglic, if he were so afraid and worried, to invite Ivan Mendez-Romero to the luncheon on the day of his death.
Cohen argued that the Crown's explanation of Mendez-Romero's motive for wanting Naglic dead doesn't hold because, since the change to his will in 2000, Naglic was worth more to Mendez-Romero alive.
"[Mendez-Romero] needed Janko Naglic around to keep the money coming in," said Cohen, adding that it was "almost an absence of motive."
Cohen called the Crown's critique of Mendez-Romero's reaction to finding Naglic's body on the morning of Oct 27, 2004 "baseless speculation."
"He is innocent," said Cohen. "He found the body and freaked out."
As for the fact that Mendez-Romero parked the couple's truck on the street instead of in the driveway Cohen said, "This is not evidence."
"This trial is all about gossip," concluded Cohen.