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Old 03-19-2017, 10:34 PM   #1021
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Originally Posted by dirk diggler View Post
and the lawyers win again, can ring up a nice big bill for all the appeals. bottom feeders
No the winner is the people that the system fail. Milgard and Morin and other people who are wrongfully convicted. This process isn't for Garland.
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Old 03-19-2017, 11:54 PM   #1022
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It's not like appeal means a re-trial. The appeals judge will probably dismiss it pretty quickly.
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Old 03-20-2017, 06:24 AM   #1023
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I'd appeal as well if I were in his shoes. I know we all want him to roll over and die, but it's not going to happen.
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Old 03-21-2017, 05:43 AM   #1024
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Why?
Very little "try" and zero passion from Ross at the trial. A reporter that covered the trial told me from the beginning the look on his face said he didn't want to be there.

It can't be easy trying to represent a monster but he picked this profession and it's his job to give it 100% for his client. I can tell you his partner would have as least raised a few questions threw cross examination and showed some passion to the jury.

Kim Ross likely took a big hit to his career with this case.
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Old 03-21-2017, 10:24 AM   #1025
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Very little "try" and zero passion from Ross at the trial. A reporter that covered the trial told me from the beginning the look on his face said he didn't want to be there.

It can't be easy trying to represent a monster but he picked this profession and it's his job to give it 100% for his client. I can tell you his partner would have as least raised a few questions threw cross examination and showed some passion to the jury.

Kim Ross likely took a big hit to his career with this case.
Admittedly I did not examine Mr. Ross' face during the trial, but this off the record opinion from the unnamed reporter stuff is pretty weak.

There were two trial lawyers working on the case throughout and a third came on at the end to help with the argument on sentencing (for the proper interpretation of consecutive 25 year periods).

Not wanting to be there and not doing the best you can with the facts / evidence you have are two very different things.

Unless you sat in on the privileged meetings, you have no idea what the client's instructions were or what admissions may have been made to Ross. And neither does the reporter. So at best any opinion of Ross' performance is necessarily an uninformed one.
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Old 03-21-2017, 10:36 AM   #1026
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I figured most of the heavy lifting Ross and his group did was probably during the prelim when they were determining admissibility. With the publication ban probably not a lot of people knew what was going on. I am guessing once it got to trial it probably had more to do with making sure procedures were properly followed with the evidence.
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Old 03-21-2017, 11:03 AM   #1027
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with the publication ban probably not a lot of people knew what was going on.
q f t
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Old 05-09-2019, 07:24 AM   #1028
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Douglas Garland will be appealing his triple murder conviction today in court:

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Garland, 59, is seeking to have his convictions overturned — to have a new trial or convictions for lesser offences.
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The appeal also stated: “The trial judge’s comments to jury about coping with disturbing evidence reflected bias, was prejudicial to defence’s case and undermined the presumption of innocence.”

Garland’s defence has also filed an appeal of his sentence, claiming the consecutive period of parole ineligibility is “excessive and harsh” in the circumstances.
This is infuriating, I hope the judge slams the door on it. It must be torturous for the O'Brien and Liknes families.
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Old 05-09-2019, 10:22 AM   #1029
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Just to add some perspective of a criminal appellate lawyer that could apply to this and many other similar cases.

The defence is the easy target for fury and outrage as a person who has been found guilty and sentenced and no longer has a presumption of innocence asks for a legal upsetting of the result.

But what I find curious is that when I win appeals where the police, Crown or judge have acted erroneously and sometimes outrageously there is almost never any public call for accountability to the other participants in the system.

Why is that?

The last murder appeal I won the Crown asked for a last minute addition to the jury charge to give an extra way that they could convict the accused. Very experienced defence counsel immediately said on the record that was an error of law and you cannot do that. It will be overturned on appeal.

The Crown persisted and the judge went with the Crown, ignoring the correct warning of defence counsel. On appeal I won on essentially exactly what the defence lawyer had said. One appeal judge asked the Crown something like “but I keep coming back to the fact that the jury was told there was an easier way to convict the accused of murder and it was wrong.”

Appeals are an essential component of any legitimate and just system most especially for offences that lead to life sentences. You should not be angered but rather comforted and encouraged when a highly skilled advocate brings forward every reasonably possible argument for a convicted person on appeal.

If the appeal is dismissed by a panel of three educated and experienced judges after a fully pressed appeal it should drastically reduce the chances of a wrongful conviction being allowed to stand.

If the appeal is granted, the vast majority of the time you can be quite assured it is for very good reason.

I have personally been involved in setting aside several murder convictions. In one case the evidence was such that the Crown did not even retry the accused - for anything. He went from convicted murderer serving life in prison to walking out of jail a free man. He was in his late 20s. His was a case of self defence.

It is frankly terrifying how many murder convictions the lawyers in our office alone have had overturned.

I am not for a second trying to speak about the families of victims or how they should view or feel about the system or how it affects them. Rather I am asking that the interested public at large perhaps take a more critical look before just predictably being angry at the defendant and his or her lawyers for doing their job well.

Often that means pressing legal arguments that may not have a high percentage likelihood of success. But having lost more than one 4-3 split decision at the Supreme Court of Canada after a split decision at the Alberta Court of Appeal I can tell you it is often far less clear than you might think what is or is not a meritorious ground of appeal.
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Old 05-09-2019, 11:05 AM   #1030
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This is why I love CP.
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Old 05-09-2019, 02:06 PM   #1031
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Saying things
I wish civil litigation was as sexy as criminal law, so I could drop nuggets of knowledge like this.
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Old 05-09-2019, 04:10 PM   #1032
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To add to the post about process above, an appeal is not a re-trial and does not involve putting the family through the whole process again. An appeal is typically a hearing on a few distinct points of law. It typically cannot involve new evidence or findings of fact. Appeals, even on major cases, are much shorter, sometimes only lasting an hour or two. Both sides submit written argument and then are called into clarify points to the panel of judges.
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Old 05-09-2019, 06:15 PM   #1033
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How long does it generally take for a decision on an appeal?
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Old 05-09-2019, 07:49 PM   #1034
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How long does it generally take for a decision on an appeal?
It is quite variable depending on the complexity and number of grounds of appeal argued, but 2-3 months on a reserved judgment is common. Longer for a murder case is not unusual though.
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Old 05-09-2019, 10:13 PM   #1035
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The Police didn't have a warrant?!! D'oh jeeezuuuus
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Old 05-09-2019, 11:26 PM   #1036
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I don’t have the legal knowledge or verbal finesse to counter MBate’s “sexy” points (DiontheDman), nor do I want to, because I agree with them. I’m quite aware of the need for defence counsel to insure that our legal system is fair, ordered and working properly, and while acknowledging the importance of lawyers such as Mr. Ross and Ms. Sanders, I do not envy them. Their work is much derided, but very important.

It became quite evident as this trial went along that the defence’s plan from the get-go was an appeal with the goal of a retrial. During the trial itself there was little to no rebuttal of the prosecution’s evidence, and at best the defence was only interested in ensuring that the investigating officers crossed their proverbial t’s.

At the heart of this appeal is evidence that the defence feels should not have been included in the original trial. Sanders recently stated that there was not enough of a link between Garland and the victims to warrant the initial search of the Garland farm – a spurious assertion if there ever was one. This search – which does not require a warrant - was an attempt to find a hidden or hiding 5-year-old, and the officers were directed not to search anywhere a child could not reasonably be found alive. A single officer who, noticing a medical-type bag that looked too clean to be in the place it was found, spread it open with his fingers and viewed inside handcuffs, a leather billy-club, knives…

The defence feels this bag was a key piece of evidence that lead to the proper search warrant that eventually found evidence that would come to incriminate and imprison Garland. Yet without this bag, there is still substantial evidence to issue a warrant, including Garland’s truck in the area of the victims’ house the morning after the murders – a truck on multiple video cameras entering the neighborhood empty, circling the house, leaving hours later in broad daylight with a tarped load, then returning again later that morning. Not to mention the link between Garland and the victims, their history, the statements made by Garland’s sister, brother-in-law, parents… I could go on.

Garland is guilty of a triple murder. He is a child-killer. He tortured, murdered, burnt and reduced three people to material the entirety of which you could fit on the end of your index finger. He knows that he is a murderer but he plead innocent so that he could have his trial in front of the Liknes family and he continues this appeal because it twists the knife further into them. That is his only motive at this point as it is the only way he can continue to impose upon them himself and his deluded sense of revenge and control. His counsel also knows that he is a murderer, but I don’t know what to do about that, about continuing with an appeal. Is there any scenario or situation where the defence counsel can say “No, Douglas. You’re guilty.”

As for the O’Brien and Liknes families not being put “through the whole process again” (blankall), I assure you, they are being put through this again. As a juror in this case - and in fear of turning this into a woe-is-me post – I can tell you that when I woke up this morning to Garland’s face on my phone, I was instantly taken back to the details of this trial and the associated nightmares. I was immediately anxious, nauseous and in the words of my wife “visibly upset.”

One detail of the case involved Nathan O’Brien’s hand print in his grandmother’s blood on a blanket, with a spatter of his own blood in drips around it – imagine a child putting his weight on his blood-covered hand while he leans over, bleeding profusely from somewhere on his head. I can’t look at my son’s hand to this day without a flash of that image. Other triggers like this slowed down and eventually stopped after a few months, but today… today I met a man named Kim. Kim Ross – Garland – bloody hand – murdered child. I saw an advertisement for a television show created by Mike Judge. Judge Gates – Garland – bloody hand – murdered child.

I don’t really have a point to all this, but I can’t even begin to imagine what the O’Brien and Liknes families have endured and are enduring again right now.

Last edited by Alpha_Q; 05-09-2019 at 11:30 PM.
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Old 05-09-2019, 11:43 PM   #1037
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I don’t have the legal knowledge or verbal finesse to counter MBate’s “sexy” points ...
That was a tough read, but thank-you for sharing.
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Old 05-10-2019, 08:37 AM   #1038
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Thanks for your viewpoint, it is thought provoking to read. I very much appreciate MBates insights on the defence council’s important role in the functioning of our legal system. The role of a juror is equally valued, and your insights into the sacrifices and emotional toll it can take is powerful.

I believe in the system of checks and balances, of legal requirements and appeals, to attempt to ensure justice is achieved, as often as possible. But there is also no doubt, on individual cases, it can be heart wrenching and frustrating. I don’t find them to be in contradiction, they are both true and real parts of the system.

So thank you for your service to our justice system, it must be incredibly difficult, and unlike a defence attorney, something virtually nobody ever aspires and chooses to do. Especially in a case like this one.

I can only hope that in spite of the emotional toll it can take on many, that justice continues to be done in this case. Again, doing the work you did on this case is extremely important and appreciated.
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Old 05-10-2019, 09:54 AM   #1039
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The defence is the easy target for fury and outrage as a person who has been found guilty and sentenced and no longer has a presumption of innocence asks for a legal upsetting of the result.
Serious question. Why don't we have Crown prosecutors and defenders? Why aren't they appointed by the court for both sides and get the experience of working on both sides of the courtroom as needed?
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Old 05-10-2019, 10:04 AM   #1040
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The public service of being a juror (on any case but particularly on a very difficult case like a homicide involving a child) is not really given the respect it deserves. Thankfully more awareness and advocacy is leading to improvements as far as counselling resources and other accommodations. But the overall concept demands that a person put his or her life on hold while they are forced to personally become part of the worst events that have happened in the community.

The judge and lawyers will regularly make decisions wherever possible to limit the amount of gruesome evidence that will be presented but it is simply not possible sometimes. And in any event, jurors are required to listen and process the witness testimony while every other member of the general public can just ignore the media coverage and block it all out.

The constitutional right to a jury in serious cases necessarily means that citizens will be randomly selected to shoulder a huge burden on behalf of everyone else. Not to diminish the respect for others like first responders, but those individuals (as with the lawyers and judges and clerks and sheriffs) at least have to varying degree chosen to be dealing with these cases. Jurors are not allowed to say no merely because they would prefer not to serve.

Alpha_Q has a perspective that only 12 people on the planet actually could have and in large part those 12 people cannot even talk about their experiences to debrief. Without question the community owes a debt for such public service.

The only quarrel I will take up is that Ms Sanders is known to be one of the most respected appeal lawyers in the province. There is likely not a practicing lawyer who has conducted more criminal appeals than her and the court as a whole respects her frank and candid approach. It is unlikely even if one assumes the argument will be rejected that her legal argument about the inability of the police to have got a warrant will be seen as spurious.

Either way, I respect the viewpoint and the discussion.
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