Searching for truth in boy’s death
Aggravating factors argued at hearing
After hearing Marleny Cruz testify at a preliminary hearing, senior prosecutor Hank Goody apparently told Cruz’s lawyer he was thinking of upping the charge against her to first-degree murder.
Such is the magnitude of Cruz’s credibility problems and unreliability as a witness.
At the time, Cruz and her ex-live-in boyfriend Joel France were both charged with second-degree murder in the July 14, 2013, death of her little boy, Nicholas.
She was then testifying at France’s preliminary hearing, and the essence of her evidence there, over eight days, was as France’s lawyer Nathan Gorham put it Tuesday, “Mr. France is the bad guy. He assaulted you, he assaulted Nicholas, he caused Nicholas’ death.”
Cruz admitted that she was hoping prosecutors might “agree to something less than second-degree” after hearing her evidence.
“That did cross my mind,” she told Gorham at the start of a devastating day-long cross-examination.
According to Gorham, one of the lies Cruz was caught in at the preliminary hearing was her testimony that France had coached her on what to tell police, and had whispered to her in the back of the squad car taking them to 14 Division to “blame the dog” for Nicholas’ injuries.
But Cruz was apparently unaware there are cameras in police cars, and when Goody played the video, and there was no such exchange on the recording, she was caught dead to rights.
Cruz was never offered a hardand-fast deal, but in the end, as part of complicated negotiations that unfolded among the lawyers and which are typical of the pragmatic bargaining that goes on in the criminal courts, she was charged with manslaughter, the charge of second-degree murder withdrawn.
Similarly, as France’s trial on second-degree murder was slated to start early last month, he instead pleaded guilty to the lesser manslaughter offence.
What is unfolding now is a socalled Gardiner hearing. Though prosecutors and defence have come up with a lengthy “agreed statement of facts,” they are arguing over the “aggravating factors” which if proven could see France get a tougher sentence from Ontario Superior Court Judge Anne Molloy.
Prosecutors say the 39-year-old France assaulted Cruz and Nicholas and that he inflicted the lethal blows that saw the little guy go into shock from severe intestinal damage.
Gorham says it was Cruz who inflicted the injuries or that she was such a negligent mother that the injuries happened accidentally.
Certainly in the witness stand now, and in her videoed Toronto Police statements of almost four years ago, it’s clear Cruz has really thrown herself into the role of abuse victim-cum-plucky survivor.
The 29-year-old pleaded guilty in January to manslaughter.
She was sentenced to six years in prison but has spent so long in pre-trial custody that she will be eligible for parole in about eight months.
Nicholas had been throwing up great amounts of green bile for days before.
As Cruz admitted Tuesday, the very day before he died, the little boy was moaning in pain. He couldn’t sit up. He had lost almost all his energy. He was refusing food.
Ah well: Neither she nor France lifted a pinkie to help him. Those are facts, as acknowledged by prosecutors and defence both.
Mostly, Cruz’s eyes are lowered. Her usual testifying/speaking voice is a whisper. She weeps often. She is the very picture of the abused.
Only occasionally did she harden her voice and grow angry, this when Gorham suggested she had borrowed from her unfortunate experience with a previous violent boyfriend to accuse France of the same kind of behaviour.
“Mr. France is 10 times worse than” the other boyfriend, she snapped. “At least” that boyfriend “did those things to me … Mr. France assaulted my son.” She then burst into tears.
Yet about three hours after Nicholas was pronounced dead at hospital that long-ago day, Cruz texted a girlfriend from the police station, where she was waiting to be questioned.
“Yo,” she wrote, “I’m at the f-king hospital something happened that I need to fix right now, it’s not the f--king time. I told u what to f--king do and u didn’t listen wtf am I suppose to do I can’t talk right now wtf don’t u understand when I have time I will call u ok!!!!”
She wasn’t at the hospital, but at the cop shop, but then Marleny Cruz lies as others breathe, it seems, always, and, almost involuntarily.
The hearing continues Wednesday.