First draft done; 2nd Twitchell charge dropped

MELBOURNE — With my first draft of the book on the Mark Twitchell case completed this week, I wanted to revisit a legal decision that had a major impact before and after the first-degree murder trial.

Back in mid-June, about two months after Mark Twitchell was sentenced to life in prison for the murder of Johnny Altinger, the Crown stayed an attempted murder charge related to his first alleged victim.

This decision to drop the second charge may seem odd to those who have followed the case closely. Detectives were adamant they had gathered a mountain of evidence — much of it revealed during the murder trial while even Twitchell himself admitted on the witness stand to committing the attack.

So why abandon it? The reasons can actually be found within the various pre-trial motions that set a path through the legal system that was pretty hard to change once it was decided upon.

In preparing the case for trial, the Crown had argued in court for both the attempted murder and first-degree murder charges be heard simultaneously as they were part of the same “transaction” of allegedly becoming a “serial killer.”

Under Canadian law, charges can only be heard together if they are strongly linked in some way. For example, if you rob a bank on Monday and kill someone on Tuesday, you get two separate trials as there’s no plausible link between the offences. But if you kill someone while robbing the bank, the two offences could likely be heard together because they were part of the same transaction. (Note: a clause in the criminal code allows multiple counts of murder be heard together even if they are different transactions.)

Court of Queen’s Bench Justice Terry Clackson was not convinced by the prosecution’s argument that the attack on the first victim, Gilles Tetreault, and the murder of Johnny Altinger were part of the same transaction. He ordered the charges be severed and heard separately.

The judge wrote that the “decision to become a serial killer is not a transaction. It is an occurrence. It was an intent.” He explained that while the same garage location and the same ruse of luring men off dating websites was used in both cases, that only shows intent. They remained separate acts, occurring a week apart.

“The offences are related and connected, but remain discrete,” Justice Clackson wrote in his reasons for the decision. “As a result, the attempted murder charge cannot stand on the same indictment as the charge of murder because they are different transactions.”

It was a victory for Twitchell’s defence team and the case proceeded only on the first-degree murder charge. The attempted murder charge was put aside to deal with later.

A conviction of first-degree murder in April 2011 secured a maximum sentence — life in prison with no parole eligibility for 25 years — and therefore virtually eliminated any need to proceed with more charges.

There remains a chance that a second conviction could have some kind of impact on parole eligibility, but how much won’t be known for two-and-a-half decades when the first application can be made.

The Crown also has a duty to proceed in the best interests of the community. Generally speaking, a prosecutor would have to also ask themselves if it’s worth it to force dozens of people to testify again, force families to relive trauma, and force strain on a legal system and the community to find jurors and hold another trial when the end result could make no difference whatsoever.

Canada does not have a legal system like other countries where someone can serve multiple life sentences and get, say, 300 years in prison. In Canada, 25 to life is the max. …

Meanwhile, editing has begun on my book manuscript. I’m going through a lot of fact-checking, a few remaining interviews and tying up loose ends over the next few months.

If all goes according to plan, the book will likely come out in February 2012 across Canada and the USA, thanks to McClelland & Stewart and Random House.

Stay tuned.

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