Prosecutor’s opening remarks lead to mistrial

Murder case put off after ‘rhetorical over-zealousness’

A prosecutor who compared an accused murderer to an “animal” and mocked his defence strategy in her opening address has been blamed for tainting a jury in Hamilton, Ont., and forcing a judge to declare a mistrial even before the first witness was called.

Assistant Crown Attorney Kim Rogers went so far as to compare the murder case against Haiden Suarez-Noa to the 1984 movie Impulse, in which rural townsfolk behave bizarrely after toxic waste leaks into the water supply, indulging “their base or most feral instincts,” as she put it.

“Imagine a society in which anyone could act upon his first instincts,” Rogers said after recommending the film. “That ladies and gentlemen, is what this trial is about: the difference between reasonable human beings and animals.”

The remarks, about the 2013 stabbing death of Suarez-Noa’s common-law partner, Tania Cowell, were so inflammatory the trial was effectively over by the first lunch break, and is expected to resume with a new jury in November.

The Crown’s opening address can, by law, offer guidance for the trial ahead, but it is “not the appropriate forum for argument, invective, or opinion,” according to the newly published reasons of Judge Robert B. Reid, about Wednesday’s mistrial. It was not just the movie reference or the “animal” comment. The entire address was a legal mess, the judge found, full of “pre-emptive argument” and discussion of, for example, personality traits that could make someone appear calm while concealing “deep uncontrolled rage.”

Reid said he had no choice but to end the trial because of the Crown’s “rhetorical over-zealousness, personal opinion, argument, negation of the accused’s right to silence and implied reversal of the onus of proof.”

“Although the reference was not direct, in my view there can be no doubt that counsel was suggesting to the jury that the accused had behaved like an animal rather than a human being in committing the acts which ... had been admitted,” Reid wrote. “That characterization of the accused was both highly improper and was of such a nature that it could not be erased from the minds of the jurors even with a significant correcting instruction. The fairness of the trial process was irremediably compromised.”