A murder from six years ago was back in court this week.
Alicia Murphy is appealing her conviction for second-degree murder.
The 34-year-old was convicted of drowning Evangeline Billy, 24, in the Yukon River in 2008. She was sentenced to life in prison without the possibility of parole for 14 years.
But in court on Monday, her new lawyers argued that the trial was not fair.
Lawyers Michael Dineen and Jennifer Cunningham represented Murphy in court.
Cunningham argued that the case against her client depended on two witnesses who claimed Murphy confessed to them.
Rae Lynne Gartner and Tanya Murphy told the original trial that Alicia Murphy admitted to drowning Billy and then staging it to look like a rape.
Without them, there is nothing to link Murphy to the location or the victim, Cunningham said. There was no forensic evidence. “Without these two witnesses there would be no Crown case.”
That’s what makes the testimony of two RCMP officers all the more important. And it was testimony that shouldn’t have been allowed, Cunningham argued.
Each officer’s evidence took up only four pages of transcript, Cunningham pointed out.
They spoke mostly about the demeanour of the two women when they were giving statement. One officer called Tanya Murphy calm and very forthcoming. The other officer called Gartner credible, Cunningham said.
In Canadian law, oath-helping – calling a witness for no other purpose than to bolster the testimony of a different witness – is not allowed.
There was no reason to call these officers as witnesses, other than to bolster the credibility of the two who claimed Alicia Murphy confessed, Cunningham said. There was no question during the original trial about how the statements were taken or how the officers behaved.
Prosecutor Keith Parkkari, who did not try the original case, disagreed. He said the officers were taking the jury through the narrative of what happened during the investigation. He said their testimony did not cross the line.
The testimony of a third officer was also criticized.
At the original trial a sergeant told the jury about some of the original theories in the case. He said officers considered early on whether the scene by the river had been staged. He also said the initial theory was that Billy had died of blunt force trauma. It was only later that officers learned she drowned.
In order for that evidence to be allowed in court, the officer would have had to be qualified as an expert witness, Cunningham said. He was not.
Again, Parkkari asserted that the officer was on the stand to explain the narrative of the investigation.
Murphy’s lawyers also raised the rare and serious accusation that their client had ineffective counsel during her first case.
During the trial, Murphy’s alibi – she claimed she was with a local drug dealer who could not testify because he committed suicide – was described to the jury as a last-minute addition to her case.
Murphy now says she didn’t realize that her right to remain silent includes an exception where she can talk about an alibi.
Dineen acknowledged that there is a high threshold if someone is going to claim they had ineffective counsel.
He argued that Murphy’s original lawyers, David Christie and Gordon Coffin, should have explained the exception to Murphy or at least explained to the jury why her alibi explanation came in late.
Parkkari disagreed. He told the panel of three Appeal Court judges that Murphy was involved in preparing her defence but chose not to come out with an alibi until very late.
A defence lawyer is not responsible for canvassing every possible defence strategy without a reason, he said.
Murphy’s lawyers also argued that the prosecutor at the time, Noel Sinclair, crossed the line in his cross-examination of the accused.
While it is clear that drug use was going to have to be part of the case, that doesn’t make a cross-examination “open season on the accused,” Dineen said.
He argued that Sinclair tried to paint his client as a drug-using criminal with a disposition for violence.
The cross-examination focused almost completely on Murphy’s character, he said, including on her ability to be a parent. It did not focus on the crime, he said.
Parkkari disagreed with the characterization of the cross-examination. This was “not a long-term abusive cross,” he said.
Parkkari pointed out that it was Murphy who brought up being a good parent in her testimony.
The cross examination should be able to examine areas brought up by Murphy, he said. “The playing field should be level.”
The Appeal Court judges have reserved their decision in the case.
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