The Bulldog and the Helix Page 14

  Gough testified that he left the camera running as he asked Dhillon to take the mannequin out of the car and lay it on the ground where the body was found. At this point, on prompting, Dhillon undressed the mannequin. He was then asked to step on the back of the jacket, then walk approximately seventy-five paces and back to step on it again, leaving two footprints similar to those found on the jacket taken from the crime scene. When that was complete, Dhillon and Gough scattered the clothes along the shore of Cox Lake.

  Judge Stewart cleared the courtroom of spectators and media prior to playing the ten-minute video presentation. Gough testified that he then took the clothes back to Vancouver where, on the weekend of October 3 through 6, he laid them out on the roof of Baker Engineering. That weekend, seventeen millimetres of rain fell, which, he testified, was similar to the eighteen millimetres of mixed rain and snow that fell in the Alberni Valley between the estimated time of Lee’s death on April 14, 1977, and 4:50 PM on April 15, when her body was found.

  Gough testified that he then brought the clothes inside to dry and subjected them to an examination for particles, first using a visual inspection, then a regular microscope followed by an electron microscope with an X-ray analyzer. His conclusions cut straight to the heart of Chamberlain’s defence. The defence counsel had cross-examined successive witnesses as to the condition of Lee’s clothing at the time her body was discovered. How, he asked, could a dirty foundry worker forcibly remove her clothes without leaving foundry residues—carbon, coke, coal, aluminium, or silicon? Gough’s testimony backed up that argument. The engineer said he found smudge marks on the sweatshirt, jeans, jacket, and tights. All contained carbon, aluminium, and silicon residues. “It was virtually impossible not to transfer foundry material to the clothing,” he said. Under cross-examination by Prevett, however, Gough admitted that he did not factor in the possibility that a second assailant—the man in the back seat of the Blazer cited by Crown witness Alice Lazorko—may have removed Lee’s clothing or that Lee, under extreme duress, had removed them herself.

  Smith was not in court for the re-enactment video. He was asked whether, had the re-enactment exercise failed to support the defence case, the Crown would have been able to subpoena the video. “No. The onus is completely on the Crown to disclose. There is no necessity for the defence to disclose except in a Charter argument. So if the defence intends to raise a Charter argument, they have to disclose how they are going to do that.”

  Following the re-enactment presentation, DNA expert Dr. Vanora Kean, also testifying for the defence, said tests performed on the vaginal swabs taken from the crime scene consistently revealed genetic material from a second male. Kean told the jury that, until March 1998, she was the forensic supervisor at Genelex, where the first PCR analysis was performed, yielding a single loci match (site DQ Alpha) with Dhillon. However, Kean testified, there were also indicators of another contributor in the Genelex sample. Kean further said that when she examined the tests performed by the RCMP Central Laboratory, she found “one unusual feature” in a test that had been discarded by RCMP analyst Anne-Elizabeth Charland.

  “Using the RCMP’s own criteria, I would have said the results are ‘inconclusive’ or there is evidence of additional data,” Kean said. “Additional data” would indicate DNA from another source—in short, another suspect. In his appeal application, Chamberlain would later raise that issue, but the “DNA soup theory,” as it was later tagged, was thoroughly discredited by the scientists.

  A second defence expert, Laurence Mueller, a professor in the Department of Ecology and Evolutionary Biology at the University of California at Irvine, told the court that there were two methods of estimating the odds on a DNA match, the counting method and the product rule. Mueller testified that while the Crown experts had used the product rule to calculate their odds in the tens of millions to one, he had employed the “more conservative” counting method, which yielded a probability of one in 582. Mueller subsequently admitted that the counting method “is not generally accepted within his scientific community,” and that the product rule was used by most government and research laboratories in North America. In Canada, the product rule was endorsed by the National Research Council. The scientist also agreed that a ten-loci match between unrelated individuals was “very uncommon,” and he had never seen it previously.

  ON THE FINAL day of testimony, Friday, November 27, Dhillon took to the stand to tell the court he did not kill Carolyn Lee. Brian Wilford, the Alberni Valley Times reporter, described the forty-eight-year-old man as “silver-haired and balding,” and noted that he “wore a black suit and a white shirt unbuttoned at the collar, as he has every day at the trial.”

  Dhillon testified in a low, measured voice and did not change his tone even when Chamberlain asked him flat out whether he had abducted or helped to abduct, rape, and murder Carolyn Lee. “No, I did not,” he replied. In his testimony, which lasted less than an hour, even with cross-examination, Dhillon mainly recounted the facts as he had given in his police statement on April 26, 1977. He initially misstated the date of the murder as April 24, and testified that he first learned of her death on April 25. When brought to his attention, Dhillon amended his statement to reset the dates to April 14 and 15.

  Most of the information Dhillon gave the jury was redundant: At the time of the crime, Dhillon owned a Chevy Blazer; he had purchased 700 x 15 Seiberling tires at Pearson Tire, and he worked for his father at Alberni Foundry. He described the scene after work on April 14, when two friends of his father showed up and all had several drinks. Dhillon testified that he was “very dirty” and used an air hose to blow loose dust from his clothing, grabbed his coat and lunchbox, locked the gate, and drove off between 6:30 and 7:00 PM. His time-line included two trips through the free car wash at Somass Division and beers at the Beaufort Hotel, and he named the same two contacts, Don McMurtry and bartender Ken Sherman. Dhillon also recounted the phone call from his wife, Sharon, and told the jury that when he left the bar at nine o’clock, she was waiting outside. She followed him home in her own car. He did not, he said, demand that she wash the Blazer, nor did he have a steering wheel cover to cut off.

  Dhillon further said that Sharon’s daughter, who was the same age as Carolyn Lee, lived in his home even after he became a suspect in the murder. Later, Sharon’s sister moved in with them for a short time and brought her own eleven-year-old daughter. Dhillon also testified that he’d been upset by the re-enactment he was required to undertake with engineer Jason Gough.

  With two of Carolyn Lee’s sisters present in the courtroom, summations to the jury began on Monday, November 30. It became clear that Chamberlain believed his client’s best chance of acquittal hinged on creating scepticism about forensic DNA and the scientists who practised it. Chamberlain told the jury that the DNA science linking his client to the crime was “a bunch of malarkey. The rest of the case supports the accused,” Chamberlain said. “He has demonstrated his innocence.”

  In his later rebuttal, Prevett declared that the physical evidence and witness testimony were sufficient to place Dhillon in the area of both the abduction and the crime scene where Lee’s body was found. Experts had testified that the DNA match to the suspect was “rare” or “very uncommon . . . When you apply your good old-fashioned common sense to the totality of the evidence, you will be able to conclude beyond a reasonable doubt that the evidence is consistent with the accused committing this murder and inconsistent with any other rational explanation.”

  For his part, Chamberlain reminded jurors that “the greatest crime a democracy can commit is to convict innocent people.” He then suggested that a guilty defendant would never have taken the stand to testify in his own defence as Dhillon had. “The accused is an innocent man. He didn’t have to testify but he did—because he’s innocent.”

  What Chamberlain didn’t mention was that the “re-enactment” of the crime sequence as staged by engineer Jason Gough was likely the most critical piece of evide
nce the defence could bring to bear. And had the handling of the mannequin not yielded the result Chamberlain was seeking—copious amounts of foundry dust transferred to the “victim’s” clothing—the resulting video would never have seen the light of day, much less be presented in the courtroom.

  Re-emphasizing the alleged fixation of the RCMP on a single, convenient suspect, Chamberlain then dipped into popular culture, referencing a crime movie released three years previously. “I say it cuts to Get Shorty,” he said, before repeating a central theme of the defence, “Let’s get Dhillon.” He cited the letter from the RCMP’s central forensic laboratory, which a Crown witness had conceded was “inappropriate,” that suggested police were focussed on matching Dhillon with DNA while eliminating the second suspect. “The lab owes its allegiance to the police. They were anxious to do the job: Get Dhillon.”

  Chamberlain again suggested that, by cooperating with police by giving a voluntary statement just twelve days after the crime, Dhillon had proven early on that he was innocent. He suggested that Dhillon’s alibi was unshakable, and yet police continued to focus on him because of shaky evidence. “They worked themselves to the bone trying to disprove that alibi. Do you know what they came up with? Nothing.”

  Chamberlain dismissed as “patently ridiculous” the testimony of Dhillon’s ex-wife, Sharon McLeod. “Her evidence is nothing more than [that of] a woman who wished to wreak her vengeance on a man.” Chamberlain suggested it was extremely unlikely that Dhillon could have abducted a twelve-year-old girl and driven through the uptown core without being noticed. As for Alice Lazorko’s testimony that she did indeed see Dhillon’s blue Blazer pass by on Third Avenue with a Chinese girl in the back seat, Chamberlain called it “thoroughly unreliable,” noting that her statement to police emphasized that a detailed memory of the event only sprang to mind in the context of a later, similarly horrifying homicide. To further discredit the witness, he noted that Lazorko was later hired on a part-time basis by Parksville RCMP.

  Chamberlain also emphasized the initial police bulletin that misstated the tires mounted on the suspect vehicle. As for the footprint on Carolyn Lee’s jacket containing carbonaceous material, Chamberlain conceded that it could have come from Alberni Foundry. But it could have come from any number of places, he noted. As for the DNA evidence, Chamberlain cautioned jurors to be “very, very suspicious.” At this point he appeared to introduce some doublethink. “‘Trust us’—this is the argument that is framed by these so-called experts. ‘Trust us. We are the all-knowing scientists. We can decide who goes to jail,’” he told jurors. But in the same argument, Chamberlain suggested that jurors should trust the defence experts because his experts held doctorates while the Crown’s DNA experts did not. That was a bit of a stretch; while the RCMP lab techs did not hold PhDs, the two Crown experts, Chakraborty and Carmody, both held doctoral degrees.

  In his later rebuttal on that point, Prevett noted that Dr. Vanora Kean, the defence’s DNA expert, had actually confirmed the DNA match with Dhillon while raising several issues of procedural error at one private lab that, in the end, proved to be irrelevant to the case. In the final analysis, Prevett said, one would have to conclude that the “very uncommon” ten-loci DNA match linking Dhillon to the genetic material on the vaginal swabs collected at the crime scene should lead to a finding of guilt.

  Prevett maintained that the combination of physical evidence and witness testimony was sufficient to incriminate Dhillon. Perhaps more importantly, it had been sufficient grounds to obtain a DNA warrant under the law passed by Parliament in 1995. Even the timeline as presented by the defence provided the accused with enough time to commit the murder, Prevett emphasized.

  The prosecutor defended the credibility of the two key witnesses who only came forward years later. Sharon McLeod may have married Dhillon, even knowing he was suspect in the crime, but her account of the evening of the crime was credible and not the fabrication of a vengeful ex-wife. “If she were out to get him, she could have said much more damaging things,” Prevett suggested. That same logic applied to witness Alice Lazorko, he later noted. Her motivation was to find two killers, not to incriminate a man who had been a suspect for seventeen years. “If she were out to get the accused, why would she mention the blond man?”

  Prevett then dismissed the videotaped “re-enactment” of the crime as “worthless,” because it was based on too many assumptions—mainly that Dhillon himself had abducted, restrained, and undressed the victim, despite Alice Lazorko’s testimony that a second man had restrained Lee in the back seat of the Blazer during the fatal drive to Cox Lake.

  “Carolyn’s death is first-degree murder because the evidence shows she was abducted as a prelude to her murder,” Prevett concluded for the jury. “The totality of the case, beyond a reasonable doubt, is consistent with Gurmit Singh Dhillon committing the murder and inconsistent with any other conclusion.”

  In his instructions to the jury, Justice Al Stewart took pains to downplay the significance of DNA evidence in the Crown’s case. “DNA evidence may establish nothing,” Stewart maintained, as he warned the jury not to be “overwhelmed by the aura of scientific evidence.”

  Stewart’s official scepticism notwithstanding, Chamberlain would maintain in his subsequent appeal of the guilty verdict that “the trial judge erred in not instructing the jury that the Crown’s DNA evidence had no probative value [evidence which is sufficiently useful to prove something important in a trial] or, in the alternative, limited probative value, if they were not satisfied beyond a reasonable doubt that there was only one male donor to the DNA material taken from the vagina of the deceased.”

  While the issue of the potential second suspect would be a critical portion of the defence’s grounds for appeal, the suggestion that the mix of genetic materials from two male donors could provide a hybrid DNA profile (the “DNA soup” theory) would later be dismissed out of hand by scientists. But in the meantime, Stewart’s extended dissertation on the need for scepticism flew in the face of Chamberlain’s contention that the judge had erred in his instructions.

  In Stewart’s statement to the jury before they sat down to begin their deliberations, he said: “Do not ever forget that, in dealing with the results of a DNA analysis placed before you by the Crown, you are, at the best, from the Crown’s point of view, dealing with one piece of circumstantial evidence relevant to the identity of a perpetrator, nothing more. DNA profiling differs from earlier forms of identification evidence, such as analysis of blood and dental impressions, only in its increased power to discriminate between individuals . . .

  “Do not be overwhelmed by the aura of scientific infallibility associated with scientific evidence. DNA evidence is never, even on the Crown’s best day, more than an item of circumstantial evidence. That is the best it can ever be, nothing more.”

  As is standard in jury briefings, Justice Stewart continued with a point-by-point definition of “reasonable doubt,” and how it applies to both evidence and the credibility of witnesses. “If the evidence of the accused . . . or of any of the witnesses placed before you by the accused, leaves you with a reasonable doubt as to his guilt, after considering it in the context of the whole of the evidence, then you must find the accused not guilty.”

  Stewart instructed that the jury had four basic options: They could find Dhillon not guilty of first-degree murder; they could find him guilty of first-degree murder; guilty of second-degree murder; or guilty of manslaughter. The first question they had to answer was, did Dhillon assault Carolyn Lee? If not, they should proceed directly to a not-guilty verdict. If the answer was “yes,” the next question to consider was whether the act was committed with reckless intent.

  If the jury concluded that the act was not committed with reckless intent, they should find him guilty of manslaughter. But if it was, the next question was whether the reckless, intentional assault involved kidnapping or rape. If the answer was “no,” the jury should bring in a guilty verdict on a charge
of second-degree murder. If “yes,” they should find him guilty of first-degree murder.

  However, having spelled out the legal requirements for bringing in a guilty verdict in the three available options, Stewart advised that the only “realistic” verdicts in this specific case, which by definition involved abduction and sexual assault, were guilty or not guilty of first-degree murder. Stewart further advised that, legally speaking, the possibility of a second suspect was a red herring. “The accused only has to be party to the offence,” he advised. “You can convict one even if the other has never been charged.”

  Once instructed, the jury began deliberating at 2:30 PM on Tuesday, December 1, and continued to deliberate until 9:40 PM. They resumed at 9:30 on Wednesday morning and would remain in deliberation until 9:45 that evening. But just before their lunch break on Wednesday, the jury foreman wrote a note to the judge: “My lord, may the jury hear the tape of the accused’s testimony?” At two o’clock, following the lunch break, the jury filed back into the courtroom to hear the replay of Dhillon’s testimony, which lasted approximately one hour.