He puts a photo of one of Millard’s tattoos on the courtroom screens. It is large and located on his inner left forearm, the same arm with the small “ambition” tattoo on the outer wrist. The tattoo reads “I am heaven sent.”
“ ‘I am heaven sent.’ ‘I am Millard. I can do anything. I can kill with impunity.’ That’s the Millard before this court,” Dungey blares.
Then, in a much softer voice, he concedes to the jurors that Mark Smich “is no choirboy” and that, yes, he failed to go to the police. He suggests that all his client may be guilty of is being an accessory after the fact to murder. But because that is not an option the jury can consider at this trial, Dungey tells them, “I am asking you to return the verdict that Mark Smich is not guilty.”
—
TONY LEITCH’S CLOSING ARGUMENTS for the Crown begin in the same place that Craig Fraser’s cross-examination of Mark Smich left off, with Smich’s and Millard’s buoyant mood after the completion of their “mission.”
“Their celebration tells you everything you need to know about this case,” says Leitch. “Marlena Meneses was honest and clearly now understands what she was involved in and deeply regrets her failure to do something when she should have. She is correcting that wrong here, telling the truth about everything, including Mark Smich’s and Dellen Millard’s celebration.”
Before outlining the evidence, Leitch tells the jury he will review some legal principles crucial to their decisions. They will be covered in more detail by Justice Goodman in his charge to the jury, but Leitch wants the jurors to understand that this case is not about who fired the shot that killed Tim Bosma. They are not required to prove what happened or determine who did what inside Bosma’s truck. What they are here to decide is whether Millard and Smich were in it together, whether they both knowingly participated in a murder in a way that helped or encouraged the other. “If you are spending your time trying to decide who did what, you are missing the point,” says Leitch. “So long as they planned to murder Tim Bosma and one helped the other carry out the plan, they are both equally guilty in the eyes of our law.”
Leitch raises the question of motive, the issue that has troubled so many since the week Tim Bosma disappeared. “Don’t be left in doubt because you want to rationalize their murderous actions,” he says. “Just follow the evidence that shows what they did, that shows they intended to kill him in their carefully planned mission.
“The fact is, sometimes people are just killers.”
Throughout his closing, as Leitch recaps much of the evidence presented in court, he tries to explain questions raised not just by the defence lawyers but also by members of the public confused by the actions of the accused. He suggests, for example, that Dellen Millard showed his face to Sharlene Bosma and Wayne De Boer because that’s the kind of guy he is. “He takes chances. He is overconfident. He thinks he’s untouchable.”
When Leitch raises the subject of why it took so long for Millard and Smich to carry out their plan, he faces a severe handicap. He cannot mention the death of Laura Babcock, who police believe was incinerated shortly after the purchase of the Eliminator in the summer of 2012. Nor can he mention the alleged murder of Wayne Millard five months later. Leitch can only point to the texts that show the 3500 mission had been in the works for more than a year, interrupted by Bobcat heists, Millardair official business, and cash flow woes.
As for why Millard showed people the Eliminator and informed them of his plans to steal a truck, Leitch says that he is a man who surrounds himself with a special type of person. Shane Schlatman and Christina Noudga didn’t ask questions. Andrew Michalski was a trusted confidant and a member of the Millard missions team, who lived in his house. Lisa Whidden was still batting her eyes at her accused murderer ex-boyfriend from the witness box. “In his mind, Dellen Millard believed he could control all these people,” says Leitch. Similarly, he expected Smich to be able to keep Meneses silent.
Leitch also believes the plan went wrong and that Tim Bosma was never meant to be killed inside his truck. This explains why Millard had meetings and dates set up for the week ahead. He thought the cleanup would be quick and that the incineration could be done at the farm, using the generator he had prepared in late April. But when things didn’t go as planned, Millard and Smich needed electricity and light and water to clean the truck, so the Eliminator was moved to the hangar. Millard’s “all-nighter” turned into an unplanned “three-dayer.”
Leitch says the Crown can’t prove definitively that Tim Bosma was killed in the field, as he and Craig Fraser believe. He has no explanation for the Super Sucker truck sightings. There are only two people left who know the truth about what happened, and they are keeping it to themselves. “We don’t have all the answers,” he tells the jury. “You don’t need to know exactly how it happened.”
The Noudga letters, Leitch reminds the jury, show Millard desperately scrambling for a story that will get him out of jail. In them, Millard states that he won’t know what defence he should use until he sees more from the Crown’s disclosure and learns what exactly the police have on him. At first, Millard is obsessed with getting Michalski to change his story and say Millard wanted to buy, not steal, a truck. Then he begins fabricating tales of fictitious killers named Itchy and his “boyz.” At the trial, he tests the we-were-only-going-to-scope-it defence, followed by the Smich-shot-him-on-the-highway version, which emerged in the final days of testimony.
According to Leitch, Mark Smich’s evidence is not reliable. “It is a lie,” he says. “And it was designed by him to shift the blame for a joint crime he and Millard committed.” His vagueness and memory failure was to avoid being pinned down and tested in cross-examination. “He was weaving a story to fit the evidence, a story he hopes will cause you to doubt his guilt.”
Leitch says Thomas Dungey repeatedly failed to put critical parts of Smich’s story to key trial witnesses. Igor Tumanenko was never asked if the GPS features of his truck were discussed on the test drive. Shane Schlatman was never asked if he showed Millard and Smich how to hotwire cars. Brendan Daly was never asked if he was present at the meeting between Millard and Smich that took place at 30 Speers Road just before Millard’s arrest. Rick Bullmann was never asked if he saw a vehicle do a U-turn. Marlena Meneses was never asked if she spoke with Christina Noudga the night of Millard’s arrest.
Smich’s evidence also conflicts with the testimony of many reliable witnesses, says Leitch. Not to mention that it makes no sense to shoot somebody in a moving vehicle while you are driving, as Smich implies Millard must have done. It wouldn’t be easy, Leitch points out, to get a good shot with one hand on the wheel and the other on a gun that your intended victim could grab at any moment when your attention was on the road. The notion is “ridiculous,” he concludes. “It never happened.”
In the three and a half days following the murder, Millard and Smich were in contact by phone sixty-eight times outside the hours they were actually together, strong evidence of their continuing partnership, says Leitch. Reminding the jurors of the nicknames the two friends gave each other, he describes them as “the Millard and Smich team—Dellen the Felon and Say10.”
He asks the jury not to forget the victim when they retire to consider their verdict. “Let the evidence guide you to the only just result for their crime: convictions for both of them for the first-degree murder of Tim Bosma.”
—
JUDGES’ CHARGES TO JURIES are not easy to sit through, especially when they last almost two entire days. The purpose of the charge is to instruct the jurors, who are the so-called triers of facts, on how to apply the law to the facts of the case.
At this charge, one of the first orders of business is the dismissal of another juror over family matters. As a result, there is no need, with the number already down to the required twelve, to draw straws before the jury can retire. The original jury of six men and eight women is now composed of six men and six women.
Jury charges consist in p
art of boilerplate instructions familiar to viewers of TV legal dramas. Among other things, the jurors are reminded that the accused are innocent until proven guilty; that if a defendant chose not to testify, his decision should not be held against him; and that though a defendant may have done bad things on other occasions, it doesn’t make him guilty of the crime with which he stands charged.
The judge will also summarize the evidence in the case and instruct on the specific legal issues that are relevant. Pedagogically, the exercise is a nightmare. The legal points can be arcane and intricate. Listening to a person talk for hours is exhausting. And everyone—jurors, court officers, spectators—is locked in the courtroom, forbidden to leave while the judge is speaking. Journalists at the Bosma trial tweet, on at least one occasion, about the sounds of snoring emanating from the audience.
On day two of the charge, when the judge gives the jury handouts of four decision trees they will be asked to use, there is mass confusion among those following the case online. A decision tree is a schematic tree-shaped diagram, like a flow chart, used to outline potential courses of action. In a complicated murder case, unless you are a savant, you have to look at the trees to make any sense of them (and even then, there are no guarantees), but only the jury gets hard copies. In this case, the decision trees are supposed to help guide jurors through the decision-making process, whether the decision being contemplated has to do with first-degree murder, second-degree murder, manslaughter, or aiding and abetting. Among the non-lawyers, the charge gives rise to jokes and eye-rolling about not seeing the decision forest for the decision trees.
Finally, late in the afternoon of June 13, the jurors are sent off to make their deliberations. Until they reach a verdict, they will be sequestered at the courthouse from 9:30 A.M. to 8:30 P.M. and then in a hotel at night. Although, from the time they are selected, jurors are ordered to refrain from reading and watching media reports about the case, it is only during deliberations that they are actually monitored and physically cut off from media. There is no TV in their hotel rooms, their phones are taken away, and court constables patrol the hallways.
—
THE MOMENT THE JURY is sequestered at a major trial, reporters publish what have come to be known as What the Jury Didn’t Hear stories. These articles, which reveal information about the accused deemed inadmissible as evidence at trial, frequently provoke indignation and outrage about how the rights of the accused trump those of victims and prevent police and prosecutors from doing their jobs. (In the Bosma case, however, much of the inadmissible material remained withheld after the trial and is subject to an ongoing temporary publication ban. This is because Justice Goodman ruled that releasing it could prejudice the fair trial rights of Millard and Smich, who also face first-degree murder charges in the death of Laura Babcock. That trial is scheduled to begin in Toronto in February 2017. Only when the jury is sequestered in the Babcock case will all the details of what wasn’t heard at the Bosma trial become known. And in fall 2017, Millard alone is set to stand trial for the murder of his father. Millard has said he plans to represent himself and plead not guilty at both those trials. Smich will also plead not guilty to the murder of Laura Babcock.)
After the jury retired to deliberate, Justice Goodman did allow the following revelations to be published, however.
Robert Burns, Dellen’s uncle, had told the police that his nephew was a “sick, twisted prick,” but he was instructed not to make similar comments in court. That kind of character evidence is frequently considered too prejudicial. Despite having his testimony seriously constrained, Burns made it clear from his body language that he loathed Millard.
Along with Christina Noudga, Shane Schlatman also received letters written in jail by Millard and delivered by Madeleine Burns. He destroyed the letters, which he said were about cars and which violated the court order forbidding Millard to contact him.
Schlatman’s father-in-law, Art Jennings, was not allowed to tell the jury about a secret compartment he and Schlatman were building in one of Millard’s trailers, possibly to smuggle drugs into Canada after Millard attended the 2013 Baja race in Mexico.
Millard wanted Marlena Meneses to wear a fake pregnancy belly to bring bullets into Canada from the United States. She tried it on but never went through with the proposed plan, as both she and Smich thought it was a bad idea.
There was far more drug use in Millard’s circle than the judge wanted revealed at trial. Although he originally tried to restrict the drug evidence to marijuana, by the end of the trial the jury had heard about narcotics in the toolbox, cocaine use, and Smich’s oxycodone habit. But the jury did not hear about incidents involving heroin and steroids.
Millard owned a second gun, a Smith & Wesson Bodyguard .380, but the judge did not want it mentioned at trial. Goodman’s rationale for restricting gun evidence remains unclear.
—
THE JURY SPENDS ALMOST four days deliberating. The Bosma family and friends stay either at the courthouse or nearby, prepared to be called back to hear a verdict within an hour’s notice. The “Bosma Army,” as the family’s many supporters have come to be known, can often be spotted at the park across the street from the courthouse, where television crews are staked out and members of the family’s Christian Reformed Church have set up a makeshift “prayer wall” complete with brightly coloured Post-it Notes. Sharlene and her sister try their hand at Jenga, the block-stacking game, while others sit in the sun and chat. Inside, on the sixth floor of the courthouse, there are card games, knitting, snacks, and full meals.
The jury makes two requests during its sequestration. On Monday evening, just hours after deliberations began, they ask when Tim Bosma went for gas. The answer is that there was no testimony about a trip for gas. A day later, the jurors say they want to listen again to portions of the testimony of Millard’s friend Matt Hagerman. Not long after they enter the courtroom to hear the testimony on Wednesday morning, one juror blanches. He is taken away for emergency medical attention and given a shot for what turns out to be a migraine. Soon he is ready to proceed, and everyone is ushered back into the courtroom to resume listening.
—
THE JURY IS NOT heard from again until Friday, just after 2 P.M., when court officials begin spreading the word that the verdict will be delivered in one hour. Within minutes, a long line has formed outside Courtroom 600. Sharlene Bosma, with her sister at her side, rushes back from outside. She looks as if she is about to break down in tears.
As a security measure, the front row, which is usually occupied by the Bosmas and journalists, is filled with police. Everyone else is bumped one row back. There is no sign of Smich’s mother, but court officers make room for his sister. The blond mystery woman who is friends with Millard is in her regular seat. One of the dismissed jurors has come back to hear her fellow jury members’ verdict. She is placed in the front row, next to police. Sharlene’s head is bowed. Mary and Hank Bosma look straight ahead.
The atmosphere in the courtroom is extremely tense. In a four-month trial with two defendants and more than ninety witnesses, three and a half days is not a long time to deliberate. This jury was a conscientious one. Many members took notes throughout the trial. Others would decline to ride in the courthouse elevators not just with the lawyers on the case but also with the press. The general feeling is that a relatively quick decision is good news for the prosecution, although juries can always surprise. As they enter the room for the final time, most of the jury members avoid meeting anyone’s eye. One or two cast a glance at the accused.
Millard and Smich are in the prisoner’s box for the first time since jury selection. Smich appears nervous, while Millard is unreadable. In the last few weeks of the trial, Millard has been far less animated than he was at the beginning, but he has continued to smirk and regularly look Smich up and down even as his co-accused ignored him.
“I am informed that the jury has arrived at their verdict,” says the judge. The jury foreman, who is an older man
, hands an envelope to a court officer to pass to the judge, who opens it, looks at the contents, and nods. The envelope is returned to the foreman.
The lawyers for the two accused stand beside them next to the prisoner’s box.
Millard is told to stand. The court registrar asks the foreman for the verdict.
“Guilty of first-degree murder,” he says.
Now comes the verdict for the second defendant, the one who many observers believe—or fear—has a reasonable chance of a second degree conviction.
Smich is told to stand.
“Guilty of first-degree murder,” says the foreman.
Ravin Pillay and Thomas Dungey ask for the jurors to be polled individually. One by one, they stand and say they agree with the verdict for Dellen Millard and then they rise again to voice their agreement with the verdict for Mark Smich.
As they absorb the news, the Bosmas are smiling broadly and crying. One of Tim’s sisters, who until now has always been calm on the surface, is half sobbing, half laughing. The dismissed juror looks quietly pleased. The overwhelmingly delighted audience was warned before the verdict to maintain order no matter what the result.
The judge endorses the indictment and enters first-degree murder convictions. He reminds the jurors that according to Canadian law everything that happened during their deliberations must be kept secret. “You are now all discharged,” he says. “Goodbye, and thank you.” Tony Leitch says the Bosma family does not wish to make victim impact statements for the purpose of sentencing. Because the penalty for first-degree murder is an automatic twenty-five years to life, no sentencing hearing is required. “We’re asking they be sentenced immediately,” says Leitch.
Justice Goodman is caught by surprise by this request and says he needs time to prepare some comments. Sentencing will take place at 4:30 P.M. As the courtroom clears, loud cheers can be heard in the hallways as spectators applaud the exiting Bosma family, the Crown attorneys, and the homicide detectives in charge of the case. It’s a moment that might not make sense unless you’re present, in which case it seems like the most natural reaction in the world. There’s a giant wave of relief that justice has been done and the trial is finally over.
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