Mistrial bid cites ‘close friendship’ between judge and prosecutor

A bid for a mistrial in the murder case of a man who killed his best friend by launching his pickup truck into the second-storey of a Leamington building will be heard in a Windsor courtroom next month.

Defence lawyer Patrick Ducharme has made a shocking allegation that Superior Court Justice Kelly Gorman was biased against his client by virtue of her “close friendship” with the prosecutor in the case.

The allegation is contained in a six-page mistrial application spoken to in court Monday that claims Gorman and assistant Crown attorney Tom Meehan exchanged text messages during the trial, met for drinks after the jury returned its verdict then exchanged more text messages about meeting alone for dinner later that night.

“The judge failed to disclose the nature and extent of her close friendship,” Ducharme said in his application. According to the document, the regional Crown Attorney’s office launched an investigation into the “potential impropriety.” In court Monday, Superior Court Justice Renee Pomerance presided. Meehan was not in the courtroom, the Ministry of the Attorney General having dispatched regional counsel Michael Carnegie from its London office to handle the application.

Carnegie told the court he needed more time to prepare and the case was put over to Dec. 11. Ducha- rme’s application, rumoured about for days last week, was filed in court late Friday afternoon.

Monday was to be the scheduled date for the sentencing hearing of Andrew Cowan, 45, convicted by a jury in August of second-degree murder.

Ducharme’s application alleges the jury reached that verdict after Cowan was “denied a fair trial” because the judge “showed an actual or reasonable apprehension of bias throughout the trial.”

The application lists a litany of specific rulings the judge made throughout the trial that did not help Cowan’s defence.

Ducharme had put to the jury that Cowan and his friend, Ed Witt, had made a suicide pact after a night of heavy drinking and gambling losses at Caesars Windsor. Cowan drove Witt’s Ford F-150 home on Oct. 12, 2012, going an estimated 150 kilometres per hour on County Road 34. The truck climbed a curb and rode up a rampshaped flower bed at the intersection of Fraser Road, launching the truck into the second-storey of a commercial building. Witt died of his injuries. Ducharme alleges the judge never instructed the jury on the defence of a “genuine suicide pact.”

Cowan’s case is at least the second time the prosecutor in the case has come under investigation. Meehan was one of the assistant Crown attorneys involved in a jury-vetting scandal in Windsor.

The murder trial of Richard Zoldi and Shane Huard ended in a mistrial in 2009 after it was discovered that Meehan had instructed Windsor police officers to run background checks on prospective jurors in the case. The information uncovered was not only deemed an egregious breach of privacy rights, but was seen as an abuse of the judicial process because it was never shared with the defence.

In his application before the court, Ducharme again alleges Meehan has acted inappropriately.

“The Crown engaged in conduct that undermines the integrity of the judicial process.”

Ducharme declined to comment after Monday’s court appearance. He said it would be inappropriate given that his application is before the court.

The judge failed to disclose the nature and extent of her close friendship. PATRICK DUCHARME, defence lawyer states in application for a mistrial