Third trial ordered in murder case
Testimony on ‘ teardrop’ tattoo ‘unreliable’
• Ontario’s top court has ordered a third trial in a Toronto murder case after finding a gang expert’s testimony on teardrop tattoos was misleading and unreliable.
Warren Nigel Abbey successfully appealed his firstdegree murder conviction in the killing of Simeon Peter, who was shot dead in east Toronto in 2004.
Prosecutors alleged Abbey was an associate of the Malvern Crew street gang and killed Peter out of a mistaken belief the 19- year- old belonged to the rival gang the Galloway Boys.
Abbey was acquitted in 2007 after a trial in which the Crown’s expert on gang culture, Mark Totten, was not allowed to testify, but that ruling was overturned on appeal.
Four years later, Abbey was convicted in a new trial that saw Totten testify that teardrop tattoos among male gang members meant the person either lost a loved one or fellow gang member, spent time in prison or killed a rival gang member.
The Crown alleged Abbey’s teardrop tattoo, which he got months after Peter’s death, indicated he carried out the killing.
But in a decision released last week, the appeal court said Totten misrepresented the studies on which he based his testimony, including the number of people he interviewed in his research and the type of data reported.
“I have concluded that the fresh evidence shows Totten’s opinion evidence on the meaning of a teardrop tattoo to be too unreliable to be heard by a jury,” Justice John Laskin wrote on behalf of the three-member panel.
“If the trial judge had known about the fresh evidence he would have ruled Totten’s evidence inadmissible. And the absence of Totten’s evidence would reasonably be expected to have affected the jury’s verdict.”
Totten testified that he conducted six studies on young Canadian gang members between 1995 and 2005, the appeal court decision said.
He told the court those studies involved 290 gang members, of which 97 had been convicted of a homicide, the document said. Of those, 71 wore a teardrop tattoo, and unanimously said it signified the killing of a rival gang member, Totten testified.
The appeal court found Totten inflated his sample size and reused some of the same interviews in several studies, which cast a doubt on his conclusions and “raises a legitimate concern that Totten’s interview summaries are fabrications.”
“Inflating his sample size as Totten has done by misrepresenting the number of gang members casts a dark cloud over the reliability of his statistical evidence,” Laskin wrote.
What’s more, the judge wrote, “not a single study lists the number of gang members who had a teardrop tattoo. Indeed, the texts of the six studies contain only a few references to tattoos and no reference at all to teardrop tattoos.”
Laskin further expressed skepticism that all gang members with teardrop tattoos interviewed by Totten said the symbol signified the death of a rival gang member, considering the sociologist cited two other possible meanings for the tattoos.
“The implausibility of Totten’s answer raises a concern about whether he had become a partisan advocate for the Crown, instead of an objective and impartial expert witness,” he wrote.
Abbey’s lawyers had asked that their client — who has been in custody since his 2004 arrest — be acquitted, but the appeal court said the Crown is entitled to prosecute Abbey again if it chooses to do so.
“Admittedly without Totten’s evidence on the meaning of a teardrop tattoo, the Crown’s case is not overly strong. But it is not wholly devoid of substance,” Laskin wrote.
Totten could not immediately be reached for comment.
WITHOUT TOTTEN’S EVIDENCE ON THE MEANING OF A TEARDROP TATTOO, THE CROWN’S CASE IS NOT OVERLY STRONG.