2016-06-04 Vader defence case casts doubt | St. Albert Gazette

Published by Bretton McCann,

Vader defence case casts doubt

Lawyer Brian Beresh mainly focuses doubt in three areas

Saturday, Jun 04, 2016 06:00 am

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Travis Vader's defence case was short and to the point, at least when compared to the mountain of evidence Crown prosecutors introduced in his double murder trial.

Defence witnesses gave evidence over the course of just two weeks, as compared to the 10 weeks Crown prosecutors required to introduce the mostly circumstantial evidence upon which they hope to get a conviction.

Vader is charged with the July 3, 2010, murders of St. Albert couple Lyle and Marie McCann. They were last seen fuelling up their motorhome at a St. Albert gas station. The motorhome was found burning July 5 at the Minnow Lake campground. They are presumed dead, though their bodies have never been recovered.

Vader's lawyer Brian Beresh, who has the benefit of having to simply prove a reasonable doubt exists, focused the evidence he presented into three main themes.

First, Vader has an alibi for the time he's alleged to have murdered St. Albert couple Lyle and Marie McCann. Second, several witnesses testified they may have seen the McCanns on July 3 and July 4. Third, defence experts have raised doubts about the testimony of Crown forensic experts that links Vader to the McCanns.

Alibi

Two defence witnesses provided evidence giving Vader an alibi for much of the period spanning from July 2, the day before he's accused of murdering the McCanns, through to July 9.

Kim Steffler testified that Vader had come to visit her roommate Sherri Campbell at her Edmonton home, staying from around 3 a.m. on July 2 until about 2 p.m. on July 3 – shortly before the Crown has suggested Vader was in the Edson area using the McCanns' cellphone.

Cellphone records show two text messages sent from the McCanns' phone around 2:15 p.m., routed through a cell tower near Peers, to Vader's ex-girlfriend Amber Williams. Williams has testified she believes the messages came from Vader because of their content and that they were signed "T."

Under cross examination, prosecutor Ashley Finlayson pointed out Steffler had told police in 2010 that she could have been off by a day with respect to when Vader left, but said based on her work records, she is now positive it was on July 3.

Esther McKay-Croswell, with whom Vader's sister Bobbi Jo was living in July 2010, testified Vader stayed at her home from the early morning hours of July 4 to July 9, contradicting the Crown's theory and other witness testimony about where Vader was during that time period.

McKay-Croswell testified that while she was busy caring for the half dozen children in the house and doing all the chores during the time she said Vader was there, she checked on him regularly in the various rooms he was staying – one on the second floor and later in the basement.

She described Vader as being "in pretty rough shape at that point" when he arrived July 4, but the specific nature of his illness was never described.

"He appeared to be sick. I wasn't sure why," she said.

Vader slept most of the time, although McKay-Croswell said she saw him sometimes for meals. She noted she he likely left the house to sit in the yard during that time, but doesn't believe he left the property.

She said he left around noon on July 9.

Under cross-examination, she conceded there were several evenings during which she was out in the neighbourhood looking for her son who had not returned home, and also conceded there was a lot of traffic in and out of the house.

McKay-Croswell maintained that despite being busy doing all the chores during that time period, even if she didn't see people come and go she knew who was in the house by the sounds of people's footsteps and the door opening and closing.

McCanns seen alive

Several witnesses have testified they saw an elderly couple with a motorhome and SUV, roughly matching the descriptions of the McCanns and their vehicles, on July 3 and 4. Two witnesses testified they were certain they saw Marie McCann, although several others did not.

Barb Gray testified she saw a motorhome and SUV matching the description of those belonging to the McCanns on July 3, 2010, at the Wolf Lake campground, which is south of Minnow Lake.

She said she noticed the Hyundai Tucson SUV because she was looking to buy a new vehicle for her daughter and looked to see if it had a tow hitch. She recalled the last three digits of the licence plate as 289, which is a match to the McCanns' SUV.

When shown a photo of Marie McCann, she identified her as the woman she saw. She said she saw that motorhome the next day parked unusually, right up against some bushes, but did not see the couple or the SUV at that time.

Debbie Foisy testified she and roughly a dozen family members had been gathered at the campground for an anniversary party July 4, and had seen a "very large motorhome" with a "silvery" SUV in tow drive into the small 12-unit campground very quickly around 3:30 p.m.

She noted she was surprised the motorhome had driven down the road to the campground, describing it as rough and like a washboard.

A woman "in her mid-60s" got out of the motorhome and detached the SUV, then the motorhome parked at a site. Beresh showed Foisy a photo that has previously been identified as Marie McCann, and she said there was no doubt in her mind that was the woman she saw.

When shown a photo of Lyle McCann, Foisy said she had not got as good a look at the man, but said "It's very possible this was the man in the campground with her."

She noted when she first saw photos of the couple in the media in mid July, she thought that was the couple she had seen.

Foisy's sister-in-law Gwendolyn Yakimovich testified she was at that same anniversary party, although her testimony did not in every case match Foisy's.

She also testified to seeing the motorhome and SUV pull into the campground, but described it as driving slowly. She said she first saw the motorhome towing the SUV make a tour of the campground around 2:30 p.m. before leaving. Both vehicles came back about a half hour later, but this time the SUV was no longer being towed but being driven by itself. A half hour after that, she said the couple left in the SUV.

Yakimovich testified she did not get a good look at the couple.

Her father Clarence Foisy also testified about what he saw that day.

While he did not identify pictures of either Lyle or Marie McCann, he said he had seen a man of about 65 years old walking near the motorhome at one point.

His daughter and daughter-in-law had previously provided similar testimony, but there was some inconsistency between their versions of events – specifically who may have been with the motorhome and when the SUV in tow was detached from the motorhome.

Foisy said he noticed the motorhome had not been parked particularly well, and had not been levelled off, as one would expect to see if people were sleeping in it for the night.

"It was parked at a really crazy angle," he said.

Experts questioned

While Beresh questioned every Crown witness under cross-examination, there were just three expert witnesses he called evidence from.

Dr. Randell Libby, a DNA expert, testified Crown expert witnesses who testified about DNA samples being matched to Vader may have been mistaken in several cases. A hat said to have both Lyle McCann's DNA and Vader's DNA, for example, didn't provide certain evidence.

"The data is incomplete," he said. "I would regard this analysis as inconclusive."

Likewise with the other samples from the SUV the Crown has suggested came from Vader. In nearly every case, Libby argued the conclusions these samples came from Vader are going too far.

"I don't disagree that the overall profile is consistent with Mr. Vader," he said, but noted most of the samples are only partial and there's not a strong enough statistical connection to say with certainty they came from him.

The one exception is with respect to the Boxer beer can found in the SUV. Crown witnesses said it was all but certain that sample came from Vader, and Libby agreed. He noted, however, that one could not say for certain when or how that DNA was deposited on the can.

A blood-spatter expert testified he did not agree with the Crown expert's conclusion that the blood spatter on Lyle McCann's hat, and on food cans in the vehicle, were a result of violence.

Joseph Slemko, an Edmonton Police officer who testified as an independent consultant, said the blood staining is more consistent with drops of blood falling from above as a result of gravity rather than major external force.

"It's a very large blood stain," he said. "The larger the blood stain, the lower the level of force."

He explained that in cases where blood is spattered by force, there tends to be more and smaller droplets in the resulting stain. In the case of the hat, he said the stains were instead consistent with blood falling onto the hat and hitting it perpendicular – any smaller spatters are likely a result of those drops.

"Sometimes blood spatter analysts misinterpret those smaller stains," Slemko said.

Lastly, an engineer who works with cellphone towers in the Edson area testified the cellphone records indicating which tower cellphone calls and text messages were routed through may not necessarily reflect where those calls were made.

Derrick Hawboldt testified in his experience, cell towers can have ranges that vary from a few kilometres up to 62 km, depending on the direction.

He also testified there would be no record of whether a call connected directly to a tower or whether it was connected via a repeater as much as 120 km away.

Arguments scheduled

With all the evidence called, all that remains in the trial is to hear final arguments, which are scheduled for June 22 to 24.

Justice Denny Thomas has said he may be able to render a decision by the end of August, but noted it may take longer given the volume of material he must consider, which includes 50 days worth of testimony, dozens of witnesses and hundreds of exhibits.









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