Millard makes his dismissive final pitch
She’s not dead. Laura Babcock is not dead. Go on, prove otherwise. This — distilled from a closing argument to the jury that stretched from 10 a.m. to nearly 5 p.m. — is the essence of Dellen Millard’s defence.
He is the accused, along with onetime wingman Mark Smich, both charged with first-degree murder.
So all that evidence called by the prosecution over the past six weeks? Doesn’t amount to a hill of beans without a body, without a crime scene, without a motive that he could ascertain as credible, without a shred a proof that the 23-year-old who vanished on July 3, 2012, was indeed slain, her body consigned to the flames of an industrial incinerator.
At times sounding incredulous, at other times sounding dismissive, from start to finish re-framing the evidence they’d already heard as benign rather than severely incriminating, Millard spent all of Tuesday making his final pitch to the jury, an exposition divided into 14 chapters.
The aviation fortune heir has, throughout trial, represented himself. He is the defendant-cumpseudo lawyer.
He stands at the tall lectern, adjusting his thick-framed spectacles, leaning an elbow and consulting notes on his laptop, spinning a didactic, caviling presentation, variously blaming police, the Crown and a plethora of “lying” witnesses for mounting a case he claims is hollow at its core.
Both Millard and Smich have pleaded not guilty.
There is, indeed, no body. Babcock’s remains have never been found. There is, indeed, no indisputable crime scene, for all that jurors have seen and heard about that monstrous apparatus dubbed “The Eliminator.”
But there is a ton of circumstantial evidence — hundreds and hundreds of text messages, the GPS signal from Babcock’s phone pinging off cell towers, putting her in the same vicinity as Millard’s phone on July 3-4, the period in which the Crown says Babcock was slain.
There are the eight calls Babcock made to Millard’s phone, her last known communication except for a message check.
There’s the photo of a rolled-up blue tarp which may have contained Babcock’s body. Hey, could have contained garbage, Millard suggested yesterday, could have contained a rug.
“I’m going to be addressing certain concepts of law,” began Millard, putting on his best lawyerly façade.
“There’s been opinions of evil, there’s been evidence of bad character, there’s been a suggestion of other criminal acts,” he continued, never budging from the podium. “I ask you to put these things aside.
“Some of you may not like how I’ve lived my life or treated certain individuals.”
Irrelevant, he urged, asking jurors to ignore all of that; to discard any assumptions, any inferences, and focus on what he characterized as the Crown’s dubious case.
“The first question: Is there a death? Is Laura dead? Let’s hypothetically say yes, then you get into the elements of the offence — place, time, method, how did she die, where did she die, when did she die? And then there’s another level — why?”
Millard compared the trial to a dream. “It’s my position that the Crown’s case is something like a dream. It seems mostly believable. But some of the major details don’t add up. I mean, things that are very significant.’’
Fundamental questions, he said, which have been left unanswered, and that are tantamount to reasonable doubt.
From dreams, he veered off towards the existential.
“I’d like to ask, what is an unreasonable doubt? I put that question out there because that’s something that comes out in philosophy.” The philosopher-lawyer-pedant now. “Am I really here? Do I exist? Is this all a dream?
“Standing here in court, I can see the judge, I can see the jury, I can smell the air, touch the wood grain on the lectern. To me, beyond reasonable doubt is to be absolutely convinced of something.”
All this evidence is mere flimsy, he argued.
“The Crown has not even got past their first question — is Laura even deceased?”
Millard leaned heavily on evidence from three witnesses who claimed they’d seen Babcock alive after July 4, although the Crown did a pretty effective job of discrediting one gentleman’s assertion. Two other witnesses had, on the stand, walked back their initial claims.
There was the fellow who said he went on a Yorkville bar date with Babcock on July 10, but later, in both police interviews and in court, retracted that; said he’d mistaken another woman for Babcock.
There was another witness who had Babcock up to his hotel room — she’d been working for an escort agency — and put that meeting in mid-July, but he could not be certain.
For Millard’s purposes, most crucially, there was the father of a man Babcock had dated in early 2012, who insisted he’d seen her making a purchase at a midtown nuts shop in October 2012. Although it could have been in 2013.
On the stand, Gabe Austerweil admitted in cross-examination that he didn’t recognize Babcock from the Facebook photo police had circulated after she went missing.
But Millard drew the jury’s attention to the audio of that testimony, in which Austerweil adds: “Here, yes, it looks like Laura, this shot.”
That comment, said Millard, was picked up by the microphone but hadn’t been distinct when Austerweil was speaking.
Millard hearkened as well to evidence from Megan Orr, who testified she’d spoken to her friend by phone on July 4. Phone records, however, showed Babcock’s last phone call, to her voice mail, was at 7:03 the previous evening.
“Laura must have changed her phone, must have got another number,” Millard said.
Which would explain why there was no subsequent activity on her BlackBerry.
No banking activity either? Why, countered Millard, Babcock never used banks, she was strictly a cashand-carry girl.
That red suitcase, with her name tag on, found at Smich’s mother’s house? Big deal, a “red herring”, said Millard. She might have had more than one bag and, yes, others recall her — couch-surfing in those months — schlepping around a duffel bag.
The laptop that had been in Babcock’s possession, borrowed from an ex-boyfriend just days before she vanished and which, court has heard, Millard gave to Smich — on it, says the Crown, Smich wrote rap lyrics allegedly about a murder, on the very night, July 23, the Crown alleges, that Babcock’s body was burned — did jurors believe he was really that stupid? “If there was a murder, if this was Laura’s iPad, do you think I would keep it around? Do you think I would let Mark keep it around?”
Millard spent less than five minutes addressing the incinerator, which he said was purchased on his family’s company account for its intended industrial purpose.
He likewise hastily discounted letters that he wrote to his thengirlfriend, Christine Noudga, before his arrest in April 2014.
In those letters, an evidentiary touchdown for the prosecution, it certainly does appear that Millard was trying to talk Noudga into bolstering his claim, should they ever be questioned, that both of them last saw Babcock alive in his basement, doing cocaine with Smich, on the night she disappeared.
Millard did spend considerable time parsing a text exchange with Noudga in which he said he was going to “hurt” Babcock. “Then I’ll make her leave. I will remove her from our lives.”
The Crown’s theory is that Babcock had come between Millard and Noudga, boasting that she was still having sex with him, which Millard yesterday denied. (They had dated briefly a few years earlier.)
Millard, asserting he really wasn’t that into Noudga by mid-2012, was in this exchange trying to assure his girlfriend of his faithfulness — though he was sleeping with an ex-fiancée at the time. “Is this text really a motive for murder or is this me telling a girlfriend in the moment what she needs to hear?
“This is talk. This is not action. This is merely talk with an upset girlfriend who wants to feel desired and protected and loved.”
Adding: “The Crown is trying to say that, because Christine and Laura are bickering, that’s motive for murder. I come to you and say it’s not. That’s ridiculous.”
Millard concluded his address thusly: “That’s all I’ve got for you today. It’s the first time I’ve done this. Thank you for bearing with me while I go through this exercise.”
Well, it’s not like they could get up and leave.
Smich’s lawyer and the Crown are expected to make their closing submissions Wednesday. Mea culpa: A column last week referred to the arrest of Millard and Smich on April 10, 2013. It was April 10, 2014. Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.