ALLEGATION OF CONFLICT

City lawyer seeks mistrial in Cowan conviction

After a night of drinking and gambling at Caesar’s Windsor in October 2012, Andrew Cowan, hitting speeds of 150 kilometres per hour, sent his friend Ed Witt’s Ford F-150 airborne into the second storey of a Leamington building.

Witt, in the passenger seat at the time, died of his injuries.

Cowan was convicted in August of second-degree murder, after failing to convince a jury Witt’s death was the consequence of a mutual suicide pact between best friends.

Now, in a stunning allegation prior to his sentencing, Cowan’s lawyer, Patrick Ducharme, filed a motion in Windsor court Friday accusing the trial judge of failing to disclose “the nature and extent of her close friendship” with the assistant Crown attorney who prosecuted the case, Tom Meehan.

Ducharme alleges in a six-page application for a mistrial that Superior Court Justice Kelly Gorman and Meehan inappropriately met during and after the trial. The document states that Ducharme was notified by the regional Crown attorney’s office that it would be launching an investigation “into the potential impropriety.”

The document was filed in Windsor court late Friday afternoon and neither Gorman nor Meehan could be reached for comment.

The judge had “at least two meetings with the Crown in the absence of the Applicant (Cowan) and defence counsel (Ducharme) during the proceedings,” the notice of application suggests.

“The judge met at a local bar for drinks with the Crown, the Crown’s articling student and lead investigating officer after the jury reached its verdict,” Ducharme states in the document.

“After leaving that bar, the Crown and judge communicated via text message to meet up for dinner alone,” it continues.

“That the judge and Crown may have communicated in the absence of the accused and his defence lawyer via text message or other means, during Cowan’s trial,” Ducharme states.

He alleges in the application that “the Crown engaged in conduct that undermines the integrity of the judicial process” and “the accused only learned of the nature and extent of the relationship between the Judge and Crown after the trial was complete and the jury rendered its verdict.”

On Aug. 31 — a week after Cowan was found guilty of second-degree murder — Lowell Hunking, regional director of Crown operations, contacted Ducharme to advise him that the regional Crown attorney’s office would be launching an investigation into the “potential impropriety,” the defence lawyer states.

During the trial, court heard Cowan and Witt had lost heavily while gambling at the casino the previous night and both had previously spoken to friends, family and colleagues about “ending it all.”

In the court papers filed Friday, Ducharme suggests the trial judge “failed to properly instruct the jury regarding the Applicant’s defence of genuine suicide” and “misstated the evidence” from a Crown wit- ness during instruction to the jury.

Gorman “showed an actual or reasonable apprehension of bias throughout the trial,” Ducharme alleges and as a consequence, Cowan “suffered prejudice throughout the trial.”

Ducharme listed several examples of the judge’s “reasonable apprehension of bias,” including failing to instruct the jury that it must conclude Cowan “caused the death of Ed Witt unlawfully.’ ”

He also stated that the judge didn’t caution the jury “regarding the inflammatory language and arguments made by the Crown during his opening address.”

Ducharme is seeking a mistrial, asserting his client was denied his Charter right to a fair trial.

Cowan didn’t testify but his lawyer argued he and Witt had made a suicide pact.

The judge referred to Caesars Windsor casino security video, asserting there was “no evidence the two men were planning to die that night — the video speaks for itself.”

Gorman suggested the defence didn’t have to prove there was a suicide pact between the two men and the Crown must prove its case beyond a reasonable doubt. If the jury accepted it was a “double-attempted-suicide by two men who were best friends,” then no crime was committed.

The Crown alleged Witt didn’t want to die.

Witt’s co-worker and friend Kim Willson said Witt confessed his feelings for her shortly before he died, but she rebuffed him.

“He said he needed a reason to wake up in the morning,” said Willson.

“And I told him I wasn’t that reason.” She observed Witt had been drinking heavily around that time and showed up to work in an intoxicated state.

Another of Witt’s co-workers, Wanda Lawhead, also testified Witt seemed downcast in the days leading up to the fatal crash.

Witt’s wife had died two years before he did, and friends said he expressed how lonely he felt since her death, court heard.

Although Witt was a blue collar worker for a local plastics company, he once lost $100,000 in a three-hour casino visit in 2009, according to casino records shown during the trial.

Witt was among the casino’s highest status wagers due to his frequent visits and large bets.

The Crown alleged this evidence refutes the notion that his losses of $5,500 on the night of the crash wouldn’t have compelled him to die because larger losses didn’t do so in the past.

The judge met at a local bar for drinks with the Crown, the Crown’s articling student and lead investigating officer after the jury reached its verdict.