It’s been a few weeks since I’ve written a Crime Diary entry. Then again, it’s been a while since I’ve written much of anything because of the Jaycee Mildenberger murder trial taking place at Yorkton’s Court of Queen’s Bench.
Without question, this is the most interesting thing I have ever covered as a newspaper reporter. It has been absolutely riveting, largely because the defendant, if guilty, had literally gotten away with murder for six years until he stupidly confessed to an undercover police officer posing as an organized crime “fixer.”
These stings, dubbed “Mr. Big” or “Crime Boss” operations, are inherently fascinating, involving elaborate fictional realities created for the suspect, usually that of an organized crime operation. They frequently use dozens of undercover operatives and usually a large number of individual scenarios designed to elicit a confession, or as the cops argue, determine the truth one way or the other.
Confessions elicited in this way, though, are inherently dubious. In a landmark ruling last year, the Supreme Court of Canada (SCC) made it even more problematic for prosecutors.
The case was the appeal of Nelson Lloyd Hart, who was convicted of killing his two twin daughters by drowning them in a Newfoundland lake. The SCC granted Hart a new trial saying two of three confessions he made to undercover Mr. Big operatives were inadmissible.
More importantly, the unanimous decision set a new judiciary principle that all Mr. Big confessions are presumed inadmissible unless the Crown can pass a rigorous two-prong test.
The first prong involves prejudice and reliability while the second deals with abuse of process.
I did not attend the voir dire in the Mildenberger case—largely because I wouldn’t be able to publish anything that happened during it anyway—but obviously the Crown was able to meet the burden of both prongs because during the trial we saw the Mr. Big confession video in full.
According to the first prong, the Crown must be careful not to unduly influence a jury by conflating a defendant’s willingness to join a criminal organization with his guilt of the crime he is being tried for.
This is one of the truly fascinating things about the Mildenberger case because right from the very beginning the suspect did not want to be involved in anything illegal. In fact, the cover person of the operation had to change tacks with Mildenberger. The business itself was on the up and up, but the boss was not paying taxes. It turned out Mildenberger was not above “screwing the taxman.”
Madam Justice C.L. Dawson instructed the jury that whatever willingness to engage in tax evasion might say about the defendant’s character could not be used to infer guilt of murder.
Reliability of the confession is also a big issue in Mr. Big stings.
“… the Mr. Big technique comes at a price,” the ruling states. “Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats—and this raises the spectre of unreliable confessions.”
In Mildenberger, the defence has focused on this aspect. The defendant himself testified he made up his first confession to Mr. Big because he had become convinced he would be going to prison whether he killed Gwen Gregory or not.
He repeated the confession after his arrest, he said, because he still thought the undercover operators were gangsters and feared for his family.
The second prong of the SCC’s admissibility test centres on the Court’s concern that the potential for abuse of process is great in this kind of operation.
“In conducting an operation, the police cannot be permitted to overcome the will of the accused and coerce a confession,” the Court stated. “This would almost certainly amount to an abuse of process. While violence and threats of violence are two forms of unacceptable coercion, operations can become abusive in other ways. Operations that prey on an accused’s vulnerabilities, such as mental health problems, substance addictions, or youthfulness, can also become unacceptable.”
The defence in Mildenberger has painted Mildenberger as a less than sophisticated individual, pointing out, for example, he had never even been on an airplane before meeting the undercover operatives. The Crown proactively attempted to counter that tack by asking every witness if they ever had any question about Mildenberger’s intelligence in their dealings with him.
Of course, on day one of the trial, when the Crown unveiled it had two videotaped confessions, the case seemed pretty cut and dried.
Now that the trial is coming to an end, I think it would be pretty tough to be a juror in this case.
The Hart ruling also suggested that the reliability of Mr. Big confessions is greatly strengthened if it leads to “confirmatory evidence,” such as minute details of the crime scene that only the killer would know.
Unfortunately for the prosecution in this case, the “holdback information,” as the police call it, is pretty weak. The defence has done a good job of raising reasonable doubt that there was anything about the crime scene that wasn’t pretty much public knowledge. At least five people, by my count, were in the house before police arrived.
And although police implied they might have physical evidence tying Mildenberger to the scene during interviews before and after his arrest, they never had enough evidence to charge him until they got the Mr. Big confession.
That leaves one thing that only the killer could have known, the location of the murder weapon. And police did find a knife where Mildenberger told investigators it would be.
The knife in question, however, has not definitively been determined to be the murder weapon. It is consistent with a knife Alton Gregory, the victim’s husband, told police was missing from his house and an expert testified could have been responsible for the victim’s wounds.
It all comes down to reasonable doubt, a concept that for all its history and prominence in the criminal justice system, remains somewhat subjective.
It’s pretty easy to sit on the outside and say, ‘yeah, I almost sure he did it.’ It’s another thing altogether to go into a jury room and convict a person beyond a reasonable doubt.
Reasonable doubt is an extremely high standard. In this case the preponderance of the evidence suggests guilt. On the balance of probabilities, he did it. But reasonable doubt is a standard designed to protect one of the most fundamental principles of Canadian society, that it is far, far worse to convict an innocent person than it is to let a guilty one go free.
By the time this edition of Yorkton This Week hits newsstands, we will likely have a verdict. I am far less certain at this point that it will be guilty than I was three weeks ago.
