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
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
"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
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
"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,
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.