STORY: "Toronto murder conviction rests on gang expert's 'false testimony,' defence claims," by reporter Betsy Powell, published by The Toronto Star on September 5, 2006.
SUB-HEADING: "New appeal attacks the credibility of a gang expert who testified about the significance of a teardrop tattoo."
PHOTO CAPTION: "Warren Abbey, who was convicted of murder in the 2004 shooting death of Simeon Peter, has a small teardrop tattoo under his right eye."
GIST: "Ontario’s highest court is being asked to overturn a murder conviction because the verdict was obtained on “false testimony” presented by the Crown’s expert witness, according to a new appeal. The principal issue in the appeal concerns the evidence of Mark Totten, an Ottawa sociologist, and his testimony on the significance of a teardrop tattoo on the cheek of the accused man, Warren Abbey. The appeal is being heard in February, but the Star obtained a copy of the defence’s written “factum” arguments filed with Ontario Court of Appeal.........In 2007, a Toronto jury acquitted Abbey of the first-degree murder of Simeon Peter, who was shot to death in the city’s east end on Jan. 8, 2004. The Crown successfully appealed after arguing the trial judge had erred in not admitting into evidence Totten’s expert testimony. That judge, Superior Court Justice Todd Archibald, found shortcomings in Totten’s data analysis on gangs and “inconsistent” conclusions about teardrop tattoos. But the Ontario Court of Appeal agreed with the Crown that Archibald got it wrong, and a new trial was ordered. Totten had “extensive and impressive academic, research and clinical credentials,” and the exclusion of his evidence could have affected the not-guilty verdict, the court ruled. At the retrial in 2011, Totten testified that Abbey’s tattoo could signify, in gang culture, that someone close to him had died, that he had served time in jail, that he had killed a rival gang member, or killed an associate — the latter being the Crown’s theory in the case. The prosecution argued this helped prove that Abbey, affiliated with an east-end street gang, had killed Peter. This time, the jury convicted Abbey. He is currently serving a life sentence in a penitentiary. After the conviction, in an unrelated murder trial, the defence asked the judge to qualify Totten as a street gang expert to rebut the evidence of the Crown’s gang expert, who testified that one of the two defendants was likely a gang member. The prosecutor in that case “uncovered major inaccuracies and discrepancies in (Mark) Totten’s teardrop tattoo evidence. The personal research he said he conducted into gang homicides and the teardrop tattoo was false,” says the factum in the new appeal filed with the court by Toronto lawyers David E. Harris and Ravin Pillay. “If what is now known about Totten’s testimony was known at the time of the (Abbey) trial . . . his evidence would never have been admitted and heard by the jury. Without his evidence, the guilty verdict may well have been different.” The factum includes a summary of the fresh evidence, including examples of “misrepresentation” in Totten’s research, reports he prepared for court and in his testimony. “Every important threshold in the compilation of his personal research has been thoroughly undermined,” says the factum. “Fundamental reliability and credibility problems plague Totten’s evidence both in the general and in the specific. Each step in his statistics has been shown to be based on fabrications,” it says. “The conviction in this case was obtained with the assistance of false testimony which played a significant role in the verdict......... In 2012, Totten spoke to the Star about his appearance on the stand in the unrelated gang trial. “I made mistakes, there’s no question about that,” Totten told the Star. “I’ve got no problem stating that. It’s the job of a lawyer to attack you as an expert witness. Some experts can handle it, others can’t. Obviously, I didn’t handle it very well. “Do I know everything about gangs in the world? No,” Totten told the Star, adding he was “truthful” in court about not knowing things. The appeal hearing is set for Feb. 15." CRITICISMS OF TOTTEN’S TESTIMONY: "In their fresh evidence application, defence lawyers summarized what they argue are problematic areas of Mark Totten’s evidence about teardrop tattoos in the Warren Abbey murder case: Totten based his opinions in the Abbey case on six studies over several years. He claimed a total sample size of 290 gang members. The defence alleges this was a misrepresentation and that his largest study “explicitly and repeatedly states that although 90 individuals were interviewed, at the most, only 22 were gang members.”..........During cross-examination in an unrelated trial in 2012, Totten was asked about how many teardrop tattoos were found in each of his six studies. Totten said he had the information and would get it to the Crown. After a recess, Totten testified all the data had been destroyed, citing ethical reasons...........Totten claimed that to gather his data, he “lived with and hung out with gang members for years and built up a trusting relationship with many of them.” However, his research makes no mention of this but states the interviewees were randomly selected at community centres, at the mall and from the Youth Services Bureau...........Statistics show that in a time period approximating Totten’s research period, there were fewer gang member homicides in Ontario than the 97 convicted gang-connected killers Totten claimed he interviewed......... .While there was “very occasional passing reference” to tattoos in the six studies, there were no statistics presented or real discussion of tattoos. There was not one reference to the teardrop tattoo..........Totten’s first Abbey report tendered at the first trial (in 2007) made only vague reference to work he had done to collect teardrop tattoo data. “It was only after the first trial judge appeared skeptical of his evidence that his very specific statistics on homicide and teardrop tattoo emerged.”.........In an unrelated murder trial, the judge found Totten had improperly altered his original research to assist the defence, who had retained him to give expert opinion evidence."
The entire story - by one of my favorite reporters and good friends at the Toronto Star - can be found at:
PUBLISHER'S NOTE: I am monitoring this case. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: firstname.lastname@example.org.
Harold Levy. Publisher; The Charles Smith Blog.