Courtroom drama

From William A. Percy
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FIRST PERSON / Reporting on the trial of Ivan Mendez-Romero James Dubro / Toronto Xtra / Monday, March 17, 2008

In my long career of reporting on crime I have never seen such a weak case as the one presented by the Crown in the death of Janko Naglic, nor have I ever witnessed firsthand the same degree of marginalization of the gay media.

I've been covering Naglic's case for Xtra since the day he was found dead in his home on Oct 27, 2004. I covered the nine-month police investigation that led to the arrest of Naglic's lover Ivan Mendez-Romero. In 2006 I attended much of the preliminary hearing. And beginning in mid-February I sat through more than three weeks of testimony and legal arguments culminating in Mendez-Romero's acquittal on Mar 4.

The trial began on Feb 4. I was there when Judge Gladys Pardu read out the charge of first-degree murder. Then there were days of unreportable legal arguments before the Crown got to its opening statements. Police promised to notify me when the housekeeping was concluded so I could be there to report on those crucial introductory arguments. They didn't. But Global television and the Toronto Star were notified; indeed Star columnist Rosie DiManno wrote up a sensational account of the Crown's statement.

I caught up on the second day of the trial and stayed with it daily for three weeks, filing detailed dispatches as often as twice a day for No other media outlet offered such extensive coverage.

The court heard that there were no witnesses to Naglic's death. There was not one fingerprint, no DNA and no hard evidence to link the accused to the crime. Juries today, no doubt influenced by years of CSI and similar crime dramas, want to see direct forensic evidence. There simply wasn't any.

What the Crown did offer was a mountain of circumstantial evidence suggesting the relationship between Naglic and Mendez-Romero was deteriorating. Friends and professional associates testified that Naglic told them about threats he said Mendez-Romero made against his life. Through witnesses the Crown laid out evidence of the lavish lifestyle Naglic and Mendez-Romero shared together, complicated by Mendez-Romero's marriage to a woman in 2004 and the strife it caused between the erstwhile couple. Moving hour by hour through the last day of Naglic's life Crown lawyer Ann Morgan argued that Mendez-Romero had opportunity to kill Naglic and a plausible motive for murder.

What Morgan didn't do was to adequately explain the lack of forensic evidence. Nor was Morgan able to convince the jury that circumstantial evidence is equal to direct evidence.

Judge Pardu did a better job in her charge to the jury — which took longer than the jury spent deliberating.

"In making your decision both kinds of evidence count," said Pardu. "The law treats both equally. Neither is necessarily better or worse than the other. In each case your job is to decide what conclusions you will reach based upon the evidence as a whole, both direct and circumstantial. To make your decision use common sense and experience."

Since the quick verdict, people have questioned how the case got to trial with only circumstantial evidence. But it must be noted that the case went through a pretrial hearing in which Judge P Newton of the Superior Court of Ontario determined that the evidence was compelling enough to warrant a trial. Furthermore that decision was appealed twice, to the Ontario Court of Appeal and then to the Supreme Court of Canada. Neither court disputed Newton's assessment.

Other reporters dropped in during the trial. DiManno came by three or four times over the course of the three weeks of witness testimony, and her flashy accounts were occasionally supplemented by newsier pieces written by other Star reporters.

On Mar 4 Pardu spent more than five hours giving instructions to the jury, reading from an 84-page document. But DiManno didn't want to spend the whole day in court listening to the judge because, as she told anyone who would listen, she had a pedicure appointment. She stormed through the staff-area of the courtroom after break and demanded a copy of Pardu's charge before the judge had finished reading it out to the jury, then disappeared.

Having worked alongside her I can tell you that DiManno is a real piece of work. She is the kind of flamboyant journalist who writes colourful copy but seems less concerned about balance or sensitivity. DiManno's coverage crossed the line into dramatic sensationalism and bordered on homophobia. In her second installment on the trial (Many Lives of Cheating Lover, Feb 20, Toronto Star) she described Barrie Martin, Naglic's friend and longtime banker, as an "old queen." Perhaps she thought she was being cute and that Martin wouldn't mind. In fact Martin was quite upset, telling me, "I would love the opportunity to call her a rotten cunt."

Many of Martin's friends — straight and gay — wrote angry letters to the Star and DiManno about the derisive description. DiManno responded in her inimitable arrogant fashion to one letter writer, who took the liberty of sharing the response with me.

"'Queen' is not a pejorative term and I won't be censored by other people's aggrieved sensibilities," wrote DiManno. "Further, I have never once, not in three decades as a journalist, ever written anything to deliberately provoke a response. I never think about readers and, frankly, don't care about readers. Not being rude, just expressing a fact. I don't write for you, your wife or your children. I write for about half a dozen people whose opinions I value."

In her installment announcing Mendez-Romero's acquittal DiManno called Naglic a "drama queen." He told people he feared for his life and he ended up dead. A more ill-fitting description would be hard to fathom, though judging by friend Tim Burke's testimony he did overbunden some of his friends with, as Burke put it, "tales of woe."

The day after Mendez-Romero was acquitted he and his lawyers held a press conference. Xtra, the only media outlet to cover the trial day in and day out, was not invited. Defence lawyers Greg Lafontaine and Laurence Cohen claim it was a simple oversight and apologized after the fact for the exclusion. Cohen even conceded that gay media is marginalized in general when it comes to court access and privileges.

But being excluded from the press conference wasn't the only slight. Xtra was all but ignored or treated as second-class throughout the trial by homicide officers, the Crown and defence lawyers. My calls went unreturned while mainstream media outlets got photos, interview privileges and inside information.

I'm not suggesting that this is homophobia, rather that the system favours the mainstream regardless of which media outlet devotes the most time and resources to the story as in this case Xtra certainly did.

Meanwhile the average gays on the street are telling me they're angry. Naglic's murder is unsolved. His killer is still at large and rumours persist that police may have had a hand in his death, a theory Cohen revisited in his closing arguments in the trial though he noted, "it is unsupported by evidence."

Investigators say all evidence led to Mendez-Romero. They say there's no evidence or motive to indicate police involvement in the killing and no evidence of a cover-up. The Crown didn't make the most of the evidence it had but there wasn't direct evidence discovered by the cops. Police incompetence? Maybe. A cover-up? Unlikely.

It's true that Naglic had his fair share of problems with police. In spring 2004 he went public with allegations of an extortion attempt involving an unidentified police officer. On the stand Martin testified that Naglic told him he made the story up to get police off his back about liquor infractions at the Barn. Naglic's criminal lawyer Andrew Czernik subsequently testified he believed that Naglic was telling the truth about the extortion attempt and that the admission to Martin was the lie.

It's unlikely we'll ever know the truth now. Naglic died a horrible and tragic death and I find it difficult to believe now that anyone will ever be held responsible for it.

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