Millard falls back on stalling and whining
The bone whisperer, who turned out to be not much more than a bone whiffler, wasn’t in the courtroom.
Out of contact. Out of range. Out of the country.
So, with habitual gall, Dellen Millard sought a week’s adjournment.
Justice Michael Code wasn’t having any of it.
The defendant, self-represented, knew full well that he was to begin calling defence witnesses on this Monday morning. The Crown had finished. The trial schedule had been structured.
Yet here was Millard — and not for the first time — seeking a significant deferment.
Clearly annoyed, Code said he’d write an order, then and there, compelling the purported expert witness to show up by the following morning.
“Why didn’t you raise this on Thursday?” demanded Code, noting that he’d repeatedly instructed Millard to get his witness ducks in a row. “You never sought the court’s assistance to get him here?” “I did not, your Honour.” And now the logistics were a hurdle, claimed Millard, he couldn’t possibly immediately overcome. His key witness was overseas, couldn’t be reached and wouldn’t be back in Canada until the following weekend.
That had the prosecution fuming. “Your Honour, this seems an awful lot like a game to me,” complained lead Crown attorney Jill Cameron, adding that the prosecution could have helped corral the witness. “We would have moved heaven and earth to get this man here but he (Millard) never asked.
“This is a game,” Cameron reiterated, “to buy time, to drag this process out, which he’s done all along.”
Judges can move mountains. Code called upon the prosecution’s investigator to at least try reaching the fellow. Mere minutes later, the cop returned. Why, goodness, he’d managed to get this elusive person on the phone lickety-split. The man wasn’t in London, as Millard had claimed. He was still in Ottawa. Yes, he could come to Toronto.
Code, reaching for his pen: “I can make a subpoena to get him here tomorrow morning at 10 a.m. and you can pay for it.” You, Millard. “I’ve been incredibly generous with time for you to prepare. I was shocked that you hadn’t told this witness to be here on Monday.”
This episode, which of course took place in the jury’s absence, amply illustrated tactics that Millard employed throughout the seven-week trial — stalling, whining, diverting blame, exhibiting a monumental sense of entitlement. Like the dilettante fortune heir he was.
The jury in the case has been deliberating since Tuesday afternoon.
Millard, who along with coaccused Mark Smich pleaded not guilty to a charge of first-degree murder in the death of 23-year-old Laura Babcock, was brought firmly to heel in this specific adjournment bid. Nevertheless, he went ahead and filed the formal motion. He likes filing motions steeped in legalese after hitting the law books — or Lawyering for Dummies — in his jail cell. He’s also been aided throughout by a real lawyer, hired on his personal payroll, after a legal aid application was rejected. Because he’s rich, or was rich, although his family’s aviation company is now in receivership.
“Depriving my defence of the opportunity to present pertinent expert evidence to the jury will violate my right to make full answer and defence,” Millard wrote. “The jury will be left with only the opinion of the Crown’s expert.”
It had to do with bones and a witness, Scott Rufolo, who Millard found at the Canadian Museum of Nature. Rufolo, whose expertise is in zoo-archaeology, the study of animal bones, eventually testified that the specimens in two photos he scrutinized — taken by Millard’s phone on July 23, 2012, showing ashes and a few remains in the belly of an industrial incinerator — more likely came from a deer than a human. Under cross-examination, Rufolo waffled and backtracked. His knowledge of human bones was limited.
But Millard’s motion veered offtopic, using the procedure to carp about circumstances which prevented him from properly assembling his case. “I am selfrepresented and the difficulties I have had in keeping pace here have been expressed throughout. All of my pretrial attempts to secure additional time to prepare were unsuccessful.” (Millard has sought to the have the trial put over to next year.) “I have repeatedly expressed my concerns about my ability to prepare. I have repeatedly asked for overnight or at least over the lunch break to prepare the next witness’ cross examination.”
If Code turned down his adjournment request, Millard warned, Rufolo’s evidence “will be the subject of a fresh evidence application on appeal.”
The entire tone of the written motion did not sit well with Code.
“I was quite surprised at your characterization” of the trial, he told Millard, “a very, very inaccurate account of what is going on here and what is on the record.
“I’ve assisted in your order of the witnesses. I made sure you had a list of (Crown) witnesses. I made special arrangements for transportation. I’ve given you a great deal of tactical and legal advice.
“It would have been a little more credible if you’d given an accurate rendition of this trial.”
Code further noted: “That whole business of the (adjournment) application was extremely suspicious.”
Code’s accommodation of Millard had been painstaking. The defendant was brought to court from jail and returned every day in a police car, rather than the paddy wagon. Code issued orders for jail administrators to ensure that Millard had time and space to prepare his legal strategy. From start to finish, even while trying to move the trial along at a brisk pace, the judge was exactingly patient and helpful, recognizing the defendant’s clumsiness with legal minutiae.
Yet over and over again, Millard griped about his situation, often advancing superficially cogent arguments, while the prosecution countered that Millard was making an intolerable virtue out of “bargaining” with the judge to get what he wanted.
At one point, while wrangling over Rufolo’s qualifications, an ingenuous Millard asserted: “I’m just trying to put all my cards on the table.”
Code: “You are bargaining in a way . . . There is a quid pro quo going on.”
The judge was at times stern and rebuking, at other times wryly amused by Millard’s manoeuvring.
At another juncture, Millard implied some kind of mendacity was afoot over Code’s decision to exclude evidence about a gun the defendant had purchased earlier in 2012. (Code had permitted evidence only about a .32 revolver Millard bought just before Babcock disappeared.)
“Don’t go lecturing me about lies when it was you who (asked for that evidence) to be excluded. It was done to protect you, Mr. Millard.”
But querulous, didactic and contriving he was, endlessly. Whether the jurors grasped these traits will remain forever unknown.
“Dr. Rufolo’s evidence is exonerative,” wrote Millard. “It proves that a deer was incinerated on July 23, 2012, not a human and not Ms. Babcock.”
It did no such thing. Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.