Prosecution concealed proof of alibi, lawyer says

From Saturday's Globe and Mail

An extraordinary, toe-to-toe battle played out in a Toronto courtroom yesterday between a Crown attorney defending the honour of her colleague and a defence lawyer alleging that his client was cheated out of a fair trial 35 years ago.

Romeo Phillion, 68, is challenging his 1972 conviction in the fatal stabbing of Ottawa firefighter Leopold Roy. He claims authorities concealed from his former lawyer, Arthur Cogan, vital evidence that police had confirmed his alibi.

In the sort of Perry Mason moment rarely seen in the refined atmosphere of an appellate courtroom, Crown counsel Lucy Cecchetto attacked Mr. Cogan for suggesting that Mr. Phillion's trial prosecutor – Malcolm Lindsay – buried a police report verifying the alibi.

“I'm suggesting that you were told not that the alibi was verified, but that it had been debunked,” Ms. Cecchetto said. She added that, once aware that Mr. Phillion's alibi was no longer valid, Mr. Cogan had decided not to pursue an alibi defence.

“Absolutely not,” Mr. Cogan shot back. “I swear it under oath. Never. It's wrong to suggest that.”

Mr. Cogan insisted that Mr. Lindsay and the police took elaborate steps to prevent him from discovering that, at the time of the slaying, Mr. Phillion's car was being towed to a service station in Trenton, Ont., where he traded his car radio for a tank of gas.

Mr. Cogan said it was ridiculous for Ms. Cecchetto to suggest that he would just accept that police had debunked an alibi they had earlier declared ironclad.

“Have the police become judge and jury?” Mr. Cogan asked. “They discount evidence? I should accept that in Canada? They just say: ‘Don't worry about it – we've discounted it.' That's not the rule of law.”

Mr. Cogan said that the concealment of the alibi report was bad enough, but the police lost a towing slip and the radio Mr. Phillion had traded – none of which came to light until lawyers for Mr. Phillion ferreted out the information in recent years.

“That's why I'm a little upset,” he said heatedly. “Because I don't believe that's the way the game should be played. They never gave me exculpatory evidence that could help me.”

“You can sleep at night, knowing that slip is missing – and it might have had the time on it?” he challenged Ms. Cecchetto. “How, as a Crown, can you be comfortable … still prosecuting the man after they lost the means for him to prove his innocence?”

The conviction review has obliged the appeal court to wade through 35-year-old transcripts and reports to adjudicate whether Mr. Cogan was made aware of the police alibi investigation.

Ms. Cecchetto and co-counsel Howard Leibovich maintain that Mr. Cogan was far too careful not to have asked Mr. Lindsay – in private, if not in court – for details on the police investigation of the alibi. They allege that police and Mr. Lindsay made enough references to Mr. Phillion's alibi that Mr. Cogan could have easily called police witnesses about it.

Mr. Lindsay provided little help on the point when he testified earlier this week. He said that he has no recollection of what he did and didn't do 35 years ago. Ms. Cecchetto said yesterday that his strong reputation for fairness and integrity is proof enough that he would have disclosed the alibi report.

However, Mr. Cogan said that he possesses something considerably stronger: “Mr. Lindsay doesn't have a memory of giving me the information,” Mr. Cogan snapped. “I do have a memory – that I never got it.”

Mr. Cogan said that Mr. Phillion – a chronic fibber who spent much of his time driving around the countryside – offered so many possible alibis that Mr. Cogan didn't know what to believe and anything police uncovered involving an alibi would have been vital to the defence.

A few more witnesses will be questioned in the summer. Legal arguments in the case will be heard next November.



Ottawa Mens, from Ottawa, Canada wrote: Prosecutors, lawyers and judges have tantamount to absolute immunity for any civil and or criminal liability. They habitually withhold evidence and engage in a matrimonial style of litigation which intrudes pervasively into criminal law with supposedly female victims and male offenders. Take Thomas & Nichols the former crowns in Timmins. They prosecuted 8 near similar criminal charges against one father simply to support local agencies of extreme feminists who decided to help an extremely violent and mentally ill mother retain custody. AT the same time, the same Crown attorneys in Timmins refused to prosecute those who admitted threatening to kill or assault the father. The also refused to prosecute a local Timmins Police officer who assaulted the father and, refused to prosecute a jail guard who personally threatened to kill the father on behalf a local feminazi social worker who fabricated evidence to assist the mother. Timmins is just a classic example of small town legal corruption where the local crown and police engage in politically motivated criminal prosecutions or the lack of simply to provide support to local personalities who just happen to have power and authority and who are equally willing to abuse that power for their friends regardless of their criminal offenses. Small towns and across Canada and Ontario have a reputation for using the local police as a weapon, as a private army to do as they are told by the local figures of authority. The most intimidating are those who are willing to abuse their power. One well known aggressive lesbian in Timmins with a reputation for sexually assaulting women in her own office claimed to be a good friend with then local chief of police Joe Harwood whose wife was strangled with an electrical typewriter cable and who the local police claimed must have been killed by a drifter. Of course it remains one of those unsolved wife murders which is no mystery in Timmins Ontario.

Posted 26/01/08 at 1:31 PM EST



Ottawa Mens, from Ottawa, Canada wrote:

Yvonne Wackernagel raises a good point. Judges for example attract those who seek power and unfortunately many would fail a psychological assessment. Such assessments can hardly determine integrity but it can show up which side of society their personalities fall. More than half our population will abuse absolute power, chronically. Take the Lucifer experiment with guards and prisoners. Judges, prosecutors, police all have absolute power and unfortunately Canada is a sick society where the sickest individuals seek and obtain absolute power discrediting and bringing into disrepute the entire administration of justice. Of couse we have the a significant percentage who do not abuse absolute power all the time, just when its something that they feel they need to as an indirect way to solve a problem that they cannot solve directly. JUDGES are the first people who need mandatory psychological assessment prior to appointment. Dito for for prosecutors. Police forces do however tend to closely interview new recruits but there one of the better forms of screening is the triangulation interview by three skilled interviewers with a substantive psychological experience. Yes, "SOME" police officers lie habitually and abuse power habitually, they run gambling operations disguised as corner stores, they frequently run a wide variety of businesses that earn them many times their official salary and its all legal except for the fact that they use their position of power to attract and keep business in a way their competition just cannot compete. Just go to any small town or city. Timmins Ontario is a classic example of small town corruption that exists across Canada with their small town police forces that become private armies. They often have a large number of officers engaged in local business. Those business connections can get your off a speeding or impaired charge as easily as a call the the unlisted cell number of the shift staff sergeant. 

Posted 26/01/08 at 1:59 PM EST