Lawyers reach agreement on testimony at Durant trial
Niagara Falls man being retried on first-degree murder charges
The knock-down, drag them out legal battle over important testimony at Michael Durant’s first-degree murder trial ended not with a bang but with a negotiated settlement.
Lead Crown Attorney Andrew Sabbadini and Durant’s counsel, Joe Wilkinson, spent the morning huddled over transcripts of witness Kevin Fancy’s testimony from the first trial.
As the morning dragged on, Superior Court Justice Gerald Taylor called everyone back into court. He wanted to know why they kept asking for delays.
“What we are talking about is an agreed statement of fact on Mr. Kevin Fancy’s evidence,”
Wilkinson said.
“Happily, we have an agreement. We have to put into PDF documents to file with the court. That is where we are at.”
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.
The Court of Appeal overturned Durant’s conviction in 2019.
Fancy died in 2018. He was a roommate with the victim and her boyfriend, John Mcneil. A court-imposed publication ban protects her name.
Wilkinson is defending Durant by offering evidence that Mcneil is the killer. Mcneil died in 2004.
Sabbadini and Wilkinson have spent two full days arguing about Fancy’s testimony for Taylor’s benefit.
Wilkinson wanted the testimony as part of this trial record. He relied on a criminal code exception for evidence by a witness at a pretrial hearing or trial when the witness has died or is unavailable.
The twist for Taylor to unravel was Wilkinson’s use of the Crown’s evidence from the first trial — for Durant’s defence this time around. It’s a use that didn’t appear to be contemplated when the statute was written.
Sabbadini called foul because the Crown didn’t cross-examine Fancy at the first trial since he was the Crown’s witness. The result was some inconsistencies between Fancy’s testimony and statements he made to the police were never probed in the first trial.
During the afternoon, Wilkinson turned to three statements made by Mcneil to police during the investigation, the first of which was made on Aug. 11. The victim’s body was discovered on Aug. 9, 2003. Wilkinson parsed some of Mcneil’s statements and offered the judge his reasoning for wanting them entered into the record.
“My theory is he gets up after sleeping, goes after her, catches up with her, and kills her,” Wilkinson said.
“I want your honour to understand what I’m trying to do,” Wilkinson said later. “You might look at all the bits and pieces and say this is pretty small stuff.
“You haven’t seen my final submission, but aside from calling Mr. Durant, I am trying to pull together statements from people who have died and drug addicts.
“I am trying to squeeze as much juice from this lemon as I can.”
Taylor told Wilkinson he had already ruled Mcneil’s evidence inadmissible when the Crown wanted it entered.
Wilkinson said he was only seeking to enter selected portions with different reasoning for its inclusion.
“This strikes me as very dangerous — for me,” Taylor said. “Two weeks ago I ruled this inadmissible.”
“Your honour may find his previous ruling precludes this,” Wilkinson said. “I don’t think it does.”
Bill Sawchuk is a St. Catharinesbased reporter with the Standard. Reach him via email: william.sawchuk@niagaradailies.com