MURDER TRIAL Crown and defence wage pitched battle over witness statement at Durant case
The gloves have come off at Michael Durant’s first-degree murder trial.
Joe Wilkinson, the attorney for Durant, spent a second day citing precedent and imploring the judge to allow witness testimony from Durant’s first trial into the record.
The twist is that the Crown led evidence in 2012, but now wants Kevin Fancy’s testimony ruled inadmissible because he died in 2018 and can’t be crossexamined.
“How could you possibly rule that the evidence that led to Mr. Durant’s conviction is so unreliable, you can’t even admit it,” Wilkinson said. “It sounds absurd on its face. Everybody felt the jury was equipped to judge the reliability of Mr. Fancy’s testimony.”
Wilkinson’s efforts at legal jiujitsu have come as part of establishing an alternative suspect defence for Durant, whose conviction was overturned last year.
Wilkinson has already told Superior Court Justice Gerald Taylor he is, in effect, putting the victim’s boyfriend, John Mcneil, on trial.
Durant, 47, is accused of killing a 32-year-old Niagara Falls woman in August 2003. The victim’s body was discovered in a ditch near Darby Road and Grassybrook Road on the outskirts of Niagara Falls. The court has a publication ban in place on the victim’s name.
Because Fancy can’t testify, the court considers his evidence as hearsay. However, there are provisions in the criminal code that make testimony available if the witness dies or is unavailable.
“The statements were given in an adjudicated setting as part of the adversarial process where one of the parties had the opportunity to cross-examine the witness,” Wilkinson said. “That is sufficient to get you over threshold liability for hearsay.”
Lead Crown attorney Andrew Sabbadini told the judge he should exclude Fancy’s evidence because Fancy wasn’t properly cross-examined on differences in statements he gave to police during the investigation.