Lawyer outraged evidence was suppressed

Defence would have been entirely different for client who spent 31 years in jail on 1972 murder conviction, court told


Thirty-five years of frustration boiled over for veteran Ottawa lawyer Arthur Cogan yesterday as he described the moment he learned his client - Romeo Phillion - spent three decades in prison because key evidence was withheld at his 1972 murder trial.

"I felt shocked, remembering how hard I had fought this case," Mr. Cogan told the Ontario Court of Appeal, his voice tinged with outrage.

"Here was this alibi that made it impossible for him to have done it. I felt bad. I would have conducted my defence entirely differently. I feel that Romeo didn't have a fair trial."

Mr. Cogan said it saddened him to know that police and prosecutors were aware as far back as 1968 that, at the time firefighter Leopold Roy was being stabbed to death, Mr. Phillion was 300 kilometres away at a highway service station.

Even under the relaxed standards for Crown disclosure that prevailed in the 1970s, Mr. Cogan testified, it was unconscionable to withhold a report stating definitively that Mr. Phillion had been "eliminated" as a suspect.

Mr. Cogan was shown the report in 2001 by a prisoners advocacy group that stated that a service station operator in Trenton, Ont., had verified Mr. Phillion's presence there on Aug. 9, 1967, when Mr. Roy was slain.

The operator had even given police a car radio that Mr. Phillion had traded for a tank of gas.

"This was hard evidence to show that he was elsewhere," said Mr. Cogan, a onetime Crown prosecutor. "I defended a man in our system. I did the best I could to defend him .... Ultimately, it was the judge and jury in this case who were deprived of something relevant to the issue."

Mr. Cogan said the 29-year-old rookie prosecutor he faced in the trial - Malcolm Lindsay - went on to forge such a reputable career that he can only conclude that Mr. Lindsay was pushed around by police working on the Phillion case.

"The Crown never wins or loses," Mr. Cogan said. "If the statement was true that Mr. Phillion couldn't have committed this crime, Mr. Lindsay had the ability to get to the bottom of it. If the Crown believes there is evidence out there that a man didn't commit a crime, how could he not want to see it?"

Mr. Cogan's riveting testimony drew together several strands of the complicated case. Mr. Justice Michael Moldaver, Mr. Justice John Laskin and Mr. Justice James MacPherson will eventually have to decide whether Mr. Phillion was wrongly convicted.

Earlier yesterday, Mr. Lindsay sent a jolt through the courtroom by saying that the alibi report ought to have been disclosed to Mr. Cogan, whether or not police later discredited it.

Responding to questions from the judges, Mr. Lindsay said: "My belief is that I was obliged, and it ought to have been disclosed."

Mr. Lindsay maintains that he is unable to remember whether he disclosed the report. One of the most difficult questions the judges must decide is whether or not he did, or whether Mr. Cogan was bamboozled.

Crown counsel Lucy Cecchetto told the court yesterday that she would never condone a valid alibi being withheld - but that her position is that the alibi was later discredited. "It is our position that there was no verified alibi," she said.

Mr. Phillion - a wizened, wise-cracking 68-year-old man - listened intently yesterday as his former lawyer described his desperate fight to keep him from being convicted and potentially sent to the gallows.

At the time, Mr. Phillion was a small-time hoodlum who habitually slept on friends' sofas and drove from town to town in his dilapidated car. As a criminal client, he was a nightmare.

"I found Romeo Phillion to be a very bizarre character," Mr. Cogan said. "He was very mixed up. This was the only occasion where I've ever talked to a man and not known whether he was telling the truth or not.

"To say he was a bizarre client would not be telling the truth. He was really quite bizarre. In the course of the defence, I got calls that he was swallowing fish hooks; that he was swallowing razor blades."

Mr. Cogan said the most damning evidence against Mr. Phillion was obviously a confession he had made, and quickly recanted.

"He had confessed to police because his boyfriend was in trouble," Mr. Cogan said. "He said: 'I'll tell you something big if you let my boyfriend go.' That was pretty bizarre. It was a really deranged thing to do. He could have hanged for it."

Ignorant to the fact that police had verified one of several possible alibis Mr. Phillion had offered him - the Trenton service station version - Mr. Cogan said he opted to focus his attack instead on the damning confession.

"I conceded that he had been in Ottawa so that I could have the jury focus on his false confession - and the fact that he was a bizarre individual," Mr. Cogan said.

His first move was to hire a psychiatrist to administer sodium pentothal - known as 'truth serum' - and question Mr. Phillion. Mr. Cogan said his client's responses were indicative of innocence.

Mr. Cogan then contacted a Chicago psychologist he had seen on television talking about a polygraph test he had given to a U.S. military commander - Lieutenant William Calley - who was accused of ordering the massacre of civilians in Vietnam.

Without the Crown's knowledge, a judge granted Mr. Cogan an order permitting Mr. Phillion to take a polygraph test in jail. "Ottawa is a small place," Mr. Cogan said, explaining the secrecy of the operation. "If word got out that he failed, it ain't going to be helpful."

However, Mr. Phillion passed this test, too.

In another dramatic exchange yesterday, Ms. Cecchetto challenged Mr. Cogan to reveal whether the reason he had not put Mr. Phillion in the witness box was because Mr. Phillion had confessed to him.

"I have an independent memory that he never admitted killing Mr. Roy," Mr. Cogan insisted emphatically. "If I had a doubt about it, I would tell you. There is no doubt."

Mr. Cogan also noted other glaring problems with the Crown's case, including police having lost: their notebooks; a receipt from the towing company that took Mr. Phillion's car to the service station; and the car radio that was given to police.

Mr. Cogan said it was inexplicable that so many vital items of evidence could be lost, and had he known, he would have stood a good chance of obtaining a stay of proceedings against his client.