Laura Babcock Murder Trial 12.08.17 - Charge to the Jury - Day 2

[meterclicks]

"In this regard, consider Mr. Millard's position, that her banking activity was always fairly minimal, that she may have changed her phone number, that she was involved with disputes with some of her friends, and that she had difficulties with her parents, as possible explanations for her apparent disappearance," Code says.
by Adam Carter 10:43 AM

Code also says the jury should consider her personality. Does it seem like she was the kind of person to do that?
by Adam Carter 10:44 AM

Code says the jury also has to consider the evidence we've heard about her having "deliberately left Toronto and disappeared, in order to start a new life away from her family and friends."
by Adam Carter 10:45 AM

Code tells the jury to also consider the timing and place of Babcock's disappearance, while apparently at Millard's home, and "the coincidence of that time and place with a number of other items of circumstantial evidence, such as Mr. Millard's alleged motive, Mr. Millard's purchase of both The Eliminator and the .32 calibre revolver, and the appearance of the object wrapped in a blue tarp at Mr. Millard's home on July 4, 2012."
by Adam Carter 10:47 AM

Code is again telling the jury that the "ashy stone" Smich rap can only be considered evidence against Smich, and not Millard -- unless they find he adopted it somehow.
by Adam Carter 10:49 AM

 

[Nosey Parker]

Sorry in advance. I am unable to copy and paste all the tweets from Lisa Hepfner due to the RA in my hands acting up. If there are questions about a particular tweet(s) by Adam Carter, I will try and find Lisa's tweet(s) and post it/them to help clarify.

RA is horrible. No need to apologise. I hope your day improves, Jasper.

 

[CJPRINCESS]

The judge says today we'll be dealing with "criminal law 101."
by Adam Carter 10:20 AM

He says he's going to be giving "fairly dense" legal instructions about first-degree murder, second-degree murder, and manslaughter.
by Adam Carter 10:21 AM

So I wonder if this is new on the table (M2 and manslaughter) possible this was part of legal arguments this morning?

 

[DeaconBrodie]

So I wonder if this is new on the table (M2 and manslaughter) possible this was part of legal arguments this morning?

M2 and Manslaughter are automatically contained within all M1 charges.

 

[CJPRINCESS]

Sorry in advance. I am unable to copy and paste all the tweets from Lisa Hepfner due to the RA in my hands acting up. If there are questions about a particular tweet(s) by Adam Carter, I will try and find Lisa's tweet(s) and post it/them to help clarify.

Must be the cold weather, I didn’t volunteer to post due to same reason. So stiff and sore making it hard to even type today.

 

[meterclicks]

"If you have reasonable doubt as to whether Ms. Babcock is dead, then you would find both accused not guilty. You would proceed no further in your deliberations," Code says.
by Adam Carter 10:54 AM

Conversely, if the jury is satisfied the Crown has proven that she's dead, Code says, then they must go on to decide whether or not it has been proven that Millard or Smich or both caused her death.
by Adam Carter 10:55 AM

The jury also needs to consider the evidence of motive, related to the "love triangle" that the Crown has suggested.
by Adam Carter 10:57 AM

 

[brightii]

This is for you Jasper52. Feel better soon!

Lisa Hepfner tweets:
Back for more judge's instructions to the jury at the #LauraBabcock murder trial. I'll tweet when the jury comes in and sum up the day at 6pm on @CHCHNews

Jury is here at #LauraBabcock murder trial. Judge tells them everyone has been here since 9 am going through the next section of the charge with the other parties. Yesterday was evidence law, today is criminal law. More "dense legal instructions."

Today Justice Code will instruct the jury on manslaughter vs. second degree vs. first degree murder. #LauraBabcock

Code says #Millard and #Smich are both charged with one count of first degree murder on the indictment. #LauraBabcock

The charge on the indictment reads: Dellen #Millard and Mark #Smich stand charged that on the 3rd or 4th day of July 2012, in Toronto, or elsewhere in Ont., they did commit first degree murder on the person of #LauraBabcock

All of the elements of a particular offence have to be proven beyond a reasonable doubt -- in terms of their legal requirements. The greater offence is 1st degree murder, but 2nd degree and manslaughter are contained within. #LauraBabcock

Second degree murder and manslaughter are "starting blocks." First degree murder requires "proof of a further element or elements beyond or in addition to the elements required for manslaughter and second degree murder." #LauraBabcock

The defence contends that #LauraBabcock is not dead, so first the jury has to decide that fact, in order to first come to possible proof of manslaughter. If they don't think manslaughter applies, they don't have to think about murder.

Code is at page 95 of his 300-page charge, he says. #LauraBabcock.

 

[CJPRINCESS]

M2 and Manslaughter are automatically contained within all M1 charges.

Thank you! I didn’t realize this. I thought TB case was M1 or nothing?

 

[brightii]

Lisa Hepfner’s tweets:

The legal requirements of all three offences include: That 1. Dellen Millard and Mark Smich 2. caused the death of #LauraBabcock, 3. by means of an unlawful act.

For second degree murder the jury then has to find that the accused caused #LauraBabcock's death "with intent." Then if the jury finds the murder was "planned and deliberate," the finding is elevated to first degree murder.

So all five elements would have to be proven for the jury to come to a first degree murder verdict, the judge says. The defence says "the crown has not proved the first three elements, which constitute the offence of manslaughter." #LauraBabcock

The jury should ask: Has the crown proved that #LauraBabcock is dead? Has the crown proved that one or both of the accused did some act/acts that caused her death? Or did she die of some other misadventure that has nothing to do with the accused.

Finally in the third part the jury asks whether the crown has proven that the act/acts that caused #LauraBabcock's death were unlawful? An "unlawful act" and "participation" are both legally defined concepts.

Dellen #Millard and Mark #Smich have to be considered separately, Justice Code says, on the basis of his own conduct and state of mind and the evidence against him. #LauraBabcock.

None of #LauraBabcock's friends or family have heard from her in over five years. Her banking activity, her health care activity, her social media activity and her telephone activity have all ceased.

Dellen #Millard's position is that #LauraBabcock always had minimal banking activity, she may have changed her phone, she was in fights with her friends and parents. Those could explain her disappearance.

 

[meterclicks]

Code also tells the jury the "motive" text messages sent by Millard (the herpes texts) are only admissible against Millard, not Smich.
by Adam Carter 10:58 AM

Code now talking about the "frequent contact" Babcock had with Millard, while she was "itinerant," and also the cell tower data that puts their phones close together.
by Adam Carter 11:00 AM

The jury also needs to consider the evidence about acquiring, preparing and testing two large incinerators, Code says, alongside evidence that Millard bought a gun around the same time.
by Adam Carter 11:01 AM

 

[brightii]

Lisa Hepfner’s tweets:

Dellen #Millard also says #LauraBabcock planned to travel to Montreal and the US, apparently with a client and may have left deliberately. Code reminds jury a few witnesses thought they saw Babcock after she had apparently disappeared.

The jury should also consider the timing and place: evidence that #LauraBabcock was with #Millard July 3rd, at the same time Millard was buying an Eliminator, a gun, complaining about Babcock to his gf, & taking a photo of a body-shaped tarp.

Mark #Smich's statemtents to his friends in the garage, about killing a girl or burning a girl and disposing of her phone in a lake, with the "ashy stone" rap song are only admissible against Smich. #LauraBabcock

Remember this in the context of the fact #LauraBabcock's phone has never been found, Millard took a route near the Lakeshore on July 4th, the look of the concrete tubes inside the Eliminator, judge says.

Also consider the evidence that Millard wrote a letter to his gf about "the night Laura disappeared," in which he may imply that she died on the night she disappeared, at #Millard's home in Etobicoke. Later Millard referred to the letter as "brainstorming."

Consider that #LauraBabcock's iPad and red suitcase were found at #Smich home in Oakville, the evidence that Smich started using it on July 4th.

If the jury finds that the crown has proven #LauraBabcock is dead, they ask whether she died at the hands of Dellen #Millard and/or Mark #Smich, or by misadventure or by some unknown person.

"Causing death" means doing some act or acts that contributed significantly to death. There is no direct evidence to what caused #LauraBabcock's death or how because her remains have never been found.

"The evidence is entirely circumstantial," Justice Code says. #LauraBabcock

 

[mimimic]

I would love to see how dejected DM and MS both look at hearing this laid out so truthfully and clean.

 

[brightii]

Lisa Hepfner’s tweets:

The evidence of motive: #LauraBabcock may have been causing difficulty for #Millard, who wrote to his gf, "first I am going to hurt her, then I'll make her leave.... I will remove her from our lives." He wrote Babcock, "you are harmful to me."

Those messages are only admissible against Dellen #Millard, Code says. Friends Karoline Shirinian and Andrew Michalski testified that Millard didn't seem bothered by the friction between #LauraBabcock and Christina Noudga.

The evidence of opportunity: #LauraBabcock and Dellen Millard were in frequent contact between June 30 & July 3, when Babcock was itinerant, looking for a place to stay, and infatuated with #Millard.

July 3, #Millard appears to have gone to Kipling Station to pick up #LauraBabcock, he then texted #Smich to not be outside when he arrived. and an hour later "I'm on a mission."

Evidence about acquiring, preparing, and testing two large incinerators, including "with bones." At the same time #Millard bought a gun. #LauraBabcock made her last phone action 7:03pm.

Her iPad was connected and backed up to #Millard's computer the next morning and renamed "Mark's iPad" at some point. It was found, along with #LauraBabcock's red suitcase, at #Smich's house.

Evidence that #LauraBabcock was itinerant and unstable and an unknown third party could be responsible for her death. She was suffering mental illness, working as an escort, had difficulty with family, was using cocaine, occasionally spoke of suicide, & talked about Montreal

 

[meterclicks]

The jury also needs to consider evidence concerning Babcock's lifestyle and whether "some unknown third party could be responsible for her death and for the disposal of her body," the judge says. "She was suffering from mental illness, was working as an escort, had difficulties with her family, was using cocaine, had occasionally spoken of suicide, and talked about travelling to Montreal and then to the United States with a man (perhaps a doctor) who was apparently an escort client."
by Adam Carter 11:04 AM

All of this relates to, Code says, deciding whether or not she "died at the hands of the accused."
by Adam Carter 11:05 AM

Code is now going through the Eliminator evidence we've previously heard several times.
by Adam Carter 11:07 AM

 

[brightii]

Lisa Hepfner’s tweets:

Evidence concerning use of the Eliminator July 23-224 and whether its arrival July 5 was connected to #LauraBabcock disappearance July 3/4th. Evidence of the blue tarp object at the barn July 4th, the barn smell check calendar entry July 7th.

Also Millard was in a hurry to build a trailer for the incinerator, the screen capture of the google search for "temperature of cremation," #Smich was standing at the eliminator holding the ash scraper on July 23. Photos of something burning inside the Eliminator. #LauraBabcock

Evidence #Smich composed his "ashy stone" rap song while something was burning in the incinerator at the hangar July 23-24. #LauraBabcock

Mark #Smich statements to friends were made in the context of performing a rap song, only admissible against #Smich, and maybe #Millard if the jury thinks he "adopted" the song. (He likely filmed it.) #LauraBabcock

 

[brightii]

Lisa Hepfner’s tweets:

Dellen #Millard's letter to Noudga about the "night Laura disappeared" which appears to suggest #LauraBabcock died there of a possible drug overdose, and the next letter that said the prior one was "brainstorming."

When Shawn Lerner asked #Millard about #LauraBabcock, the accused answered that he'd heard, but "don't know where she is." Similar statements to Michalski, which the crown contends are false.

If the jury has reasonable doubt that #Millard and #Smich caused #LauraBabcock death, they would find both accused not guilty.

 

[meterclicks]

Code is now telling the jury they'll have to consider Smich's alleged statements to his friends in the summer or fall of 2012 about killing a girl or burning her body.
by Adam Carter 11:09 AM

Code says he will "substantially review" all the evidence in the next section of the charge, and what he's been doing here is just an overview.
by Adam Carter 11:12 AM

Code says if the jury is satisfied beyond a reasonable doubt that Babcock is dead and that one or both of Millard and Smich caused her death, then they have to move on and decide whether her death was "an unlawful act," and whether each participated in that act.
by Adam Carter 11:16 AM

 

[brightii]

Lisa Hepfner’s tweet:

If the jury is satisfied that #LauraBabcock is dead and that one or both of the accused caused her death, they move to the next question. Whether the act/acts that caused her death were unlawful, and whether each participated in the unlawful act.

 

[brightii]

Lisa Hepfner’s tweets:

An "unlawful act" is an objectively dangerous criminal offence. Like intentionally applying physical force by any means without consent. #LauraBabcock

The first accused is called the principal, the second is the aider or abettor. Aiding means helping. Abetting means encouraging. The jury doesn't have to decide which accused did which action. They are equally guilty if the second knowingly & intentionally assisted or encouraged.

 

[meterclicks]

Now code is giving the definition of an unlawful act in the law of homicide. Ie "intentionally applying physical force to Ms. Babcock by any means and without her consent, in circumstances where bodily hard to Ms. Babcock was reasonably foreseeable, would amount to an unlawful act."
by Adam Carter 11:19 AM

Code now saying you can have a "principal" and an "aider or abettor." He says the jury doesn't need to figure out who did what exactly, they're both treated as parties of the unlawful act and parties to manslaughter.
by Adam Carter 11:21 AM

The jury also doesn't need to figure out exactly how the act happened, but they must be satisfied that both accused were there and "knowingly and intentionally participated in the act that caused death."
by Adam Carter 11:22 AM