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Friday, November 19, 1999

Bernardo unveils the horror again
Christie Blatchford
National Post

Jack Chiang, the Kingston Whig-Standard
Paul Bernardo, convicted of murder in 1995, is seeking a new trial.

They will not fade away. They will not shut the hell up.

They will never go quietly anywhere, not into the good night, let alone the tender embrace of the Canadian prison system.

It is not enough for Karla Homolka and Paul Bernardo that by dint of their sick work, they will haunt the collective subconscious of several generations of their countrymen forever; no, they want to invade it, again and again, as surely as they invaded Homolka's baby sister, Tammy, and teenagers Leslie Mahaffy and Kristen French and a handful of young women known as Jane Does, with fingers and mouths and organs and pop bottles and a video camera.

Homolka, with her smug attempts to prepare for her inevitable release from jail by demanding more freedom now (and then yesterday, abandoning that campaign in the face of public wrath), and Bernardo, with his efforts to win a new trial, remain as relentless as they were in their girl-abducting prime. This conduct alone -- their separate refusals to recognize how lucky they are, or, if you like, to admit that this is as good as it will get for them and to suffer in silence -- serves by itself as justification for capital punishment: It is surely the only way they would be stilled.

That said, the sheaf of documents released into the public domain yesterday by Madam Justice Rosalie Abella of the Ontario Court of Appeal, which will hear the case next spring, gives new life to the question that while ranking as the least-compelling in the nation, is nonetheless as legitimate today as it was four autumns ago: Who really killed Leslie and Kristen?

The jury that presided over Bernardo's lengthy trial through the summer of 1995 found that it was he who actually took the girls' lives, Leslie likely by asphyxiation, Kristen certainly by strangulation, and convicted him, among other charges, on two counts of first-degree murder.

But the actual murders were among the very few acts that the couple did not capture on video; the so-called attack tapes, which were shown only to the lawyers, judge and jurors, documented in detail virtually everything that led up to the teenagers' deaths -- the litany of vicious and sordid sexual assaults that were perpetrated upon them; their dreadful humiliations small and grotesque (from Bernardo complaining about Leslie, upon his first viewing of her in the couple's pretty home, that her stomach was a little fat, to Kristen being forced to play schoolgirl with Homolka, the pair of them in kilts playing with the slattern's perfumes, as though there exists a scent that could have made that creature smell anything but feral); the panting fear of these two young women.

But the camera stopped rolling before the killings, and therein lies the problem, because what the tapes showed, quite clearly, was that either one of Bernardo or Homolka was fully capable of murder, that both of them had what you might call the wrong stuff -- the pathology, the callous disregard for human life, the casual, yawning indifference to anything but their own urgent desires.

If it is true that only Bernardo was seen physically battering the two girls and occasionally threatening them with death, it is also true that it was Homolka who replied, when Bernardo said he wanted to keep Kristen alive another day, that her parents were coming over for Easter dinner that night, and, like, what could he be thinking? In fact, if the modern teenager's use of "Duuuh" as a sort of catchall for really dumb behaviour, had been in vogue back then, surely Homolka would have answered her husband with it.

What the jurors had before them, then, were two people, either one of whom they might reasonably have believed was the killer.

There was a fly in that ointment, though -- and it's at the heart of the argument Bernardo's lawyers are now making on his behalf.

By the time Bernardo came to trial, Homolka had already zipped through the judicial system: With a massive police search of the pair's house having failed to find the videotapes they knew existed (and which were later found, when the house reverted back to Bernardo, by his then-lawyer, Ken Murray, who did not turn them over for some time), the Crown needed Homolka.

In exchange for her testimony against her husband, she was allowed to strike what has become perhaps the most notorious plea bargain in Canadian history -- pleading guilty to manslaughter in Kristen's and Leslie's murder, with an additional two years tacked on for her role in the drugging and sex assault which had killed her sister, and receiving a whopping 12-year sentence.

That meant by the time she popped into the witness stand for an extended stay at Bernardo's trial, she was a convicted felon, but one convicted merely, if such a thing makes sense, of manslaughter.

And she was, further, tarted up by the Crown prosecutors -- portrayed not as the giddy player in all these crimes that the videotapes revealed her to be, but as another victim of Bernardo, a battered wife, the compliant spouse of a sexual sadist. The prosecutors called a couple of expert witnesses to bolster this view of her, and they had all kinds of fancy names for what had compelled her to join her hubby, but it boiled down to this: Po' little girl led astray by a very bad man. Even her lip-smacking glee -- and she did on occasion actually lick her lips in delight during the assaults -- the experts explained away: She was acting; she was afraid; she was pretending. What looked like sexual excitement was an actress giving the performance of her life.

It combined to lend her a sheen of credibility that Bernardo didn't have, though he, too, took the stand, and was no more, and no less, believable than his wife, though considerably less attractive. Most criminal cases, when the pedal hits the metal, come down to he said/she said, and this one was no different: Homolka went to the stand first, and in all her girlish rehabilitated glory, said he killed the two young women; he followed, and said uh-uh, she done it. The post-mortem results didn't point clearly to either one of them.

By allowing this expert evidence (and some other, which showed Bernardo had used a ligature in rough sexual play early on in his career); by failing to explicitly warn the jurors not to be swayed by Homolka-as-victim; by failing to tell them that the fact of her manslaughter convictions did not mean she herself couldn't have killed Leslie and Kristen, Mr. Justice Patrick LeSage, Bernardo's lawyers argue, made significant errors in law that warrant their client receiving a new trial.

In effect, they say, Bernardo was left having to prove that Homolka had done the murdering, a reversal of the fundamental rule that the burden of proof is always and forever upon the Crown, and that an accused has to prove nothing.

The lawyers may be right. Certainly, as someone who was in court for all of Bernardo's trial, and Homolka's brief plea before it, I was never satisfied beyond a reasonable doubt that he had done it. I didn't frankly much care; he had probably done enough that I would have been content to throw away the key to his cell. But I was not a juror; their burden was higher, more onerous, than mine, and that is a right and proper thing.

The lawyers -- they make their case in an 80-page plus document called the factum, with the Crown to respond early next year and the appeal slated to be heard in March -- may be right.

And, lest we forget, thanks to Homolka's aborted efforts to win release, which became public last month, the world knows now that at least two of those jurors were so moved by her plight, by her sad victimhood, that after the trial ended, they wrote consoling letters to her family.

Copyright Southam Inc.