Warren Abbey: Ontario; Experts and gang-related evidence: Controversial "teardrop tattoo" expert evidence prolonged murder case for years - but as the Star reports (reporter Betsy Powell) "Accused in teardrop-tattoo case pleads guilty to manslaughter, released after almost 11 years."... "A Toronto man pleaded guilty Monday to manslaughter, ending a 14-year legal saga around the significance of the teardrop tattoo under his right eye. Warren Abbey’s plea marks an end to a tangled story that began in 2007, when he was acquitted of first-degree murder in the 2004 fatal shooting of 19-year-old Simeon Peter in Scarborough. At that time, the trial judge ruled the Crown could not call an expert witness to testify that Abbey’s facial teardrop tattoo might have meant he killed someone. The Crown appealed and at a second trial in 2011, the expert, Ottawa sociologist Mark Totten, was allowed to testify. That time, Abbey was convicted and sentenced to life in prison. But last summer, Ontario’s top court ordered Abbey to stand trial for a third time, finding Totten’s evidence to be unreliable and his testimony full of “inaccuracies” and even “falsehoods.” On Monday in Ontario Superior Court, the need for that third trial ended when Abbey admitted shooting the victim, believing he was a member of the rival Galloway Boys who had robbed him. (Abbey was affiliated with a Scarborough street gang known as the Malvern Crew.)

PASSAGE OF THE DAY: "The Crown appealed and at a second trial in 2011, the expert, Ottawa sociologist Mark Totten, was allowed to testify. That time, Abbey was convicted and sentenced to life in prison. But last summer, Ontario’s top court ordered Abbey to stand trial for a third time, finding Totten’s evidence to be unreliable and his testimony full of “inaccuracies” and even “falsehoods.”

STORY: "Accused in teardrop-tattoo case pleads guilty to manslaughter, released after almost 11 years," by reporter Betsy Powell, published by The Toronto Star on May 28, 2018.

PHOTO CAPTION: "Warren Abbey, shown on his arrest date on March 10, 2005, admitted Monday to the fatal shooting of Simeon Peter in Scarborough in 2004, ending a 14-year saga relating to expert evidence and the accused man’s facial tattoo."

GIST: "A Toronto man pleaded guilty Monday to manslaughter, ending a 14-year legal saga around the significance of the teardrop tattoo under his right eye. Warren Abbey’s plea marks an end to a tangled story that began in 2007, when he was acquitted of first-degree murder in the 2004 fatal shooting of 19-year-old Simeon Peter in Scarborough. At that time, the trial judge ruled the Crown could not call an expert witness to testify that Abbey’s facial teardrop tattoo might have meant he killed someone. The Crown appealed and at a second trial in 2011, the expert, Ottawa sociologist Mark Totten, was allowed to testify. That time, Abbey was convicted and sentenced to life in prison. But last summer, Ontario’s top court ordered Abbey to stand trial for a third time, finding Totten’s evidence to be unreliable and his testimony full of “inaccuracies” and even “falsehoods.” On Monday in Ontario Superior Court, the need for that third trial ended when Abbey admitted shooting the victim, believing he was a member of the rival Galloway Boys who had robbed him. (Abbey was affiliated with a Scarborough street gang known as the Malvern Crew.) Peter, who went by the nickname Sammy, was not known to police and not known to be associated with any gangs. Abbey, now 32 years old, has served 10 years, nine months and 22 days in custody, and was sentenced to time served plus one day. He was released Monday, a fact Peter’s family members drew attention to in their victim-impact statement. The family wrote they have come to terms with losing a “funny, lovable, kind” and down to earth person, but all these years later, “the wound has been torn open and we are forced to relive this nightmare. “With the rewriting of this ugly chapter our family for the rest of our lives now will have to wonder when we’re out in public if we will ever be in a situation where we have to face him, Warren Abbey the man who admitted shooting Sammy ... Sammy was robbed of his life our family was robbed of life and the accused, Warren Abbey gets his back. “On January 8th, 2004, our family lost a son, we lost a brother, and all because of the cruel, heartless and monstrous actions of one person, Warren Abbey. Simeon (Sammy) Peter was an innocent individual who happened to be in the wrong place at the wrong time.” According to the agreed facts filed in court, Abbey told a witness that on that day he followed the victim, who “turned and appeared to be trying to pull a gun out of his pant area. “Abbey, in response, based on past knowledge of incidents with Galloway Boys members, pulled out a firearm and fired several shots in the male’s direction,” the statement says. “The male was seen to run into a nearby driveway and crouch down. Abbey moved forward to see what the male was doing and at the same time fired one more shot, turned and ran away from the area. He fled through some houses and eventually returned home.”

The entire story can be read at the link below:
https://www.thestar.com/news/gta/2018/05/28/accused-in-teardrop-tattoo-case-pleads-guilty-to-manslaughter-released-after-almost-11-years.html

See earlier  post of this Blog- August 4, 2018)  at the link below:
http://smithforensic.blogspot.com/2017/08/warren-abbey-ontario-toronto-star.html

GIST:  "The Toronto Star story by Legal Affairs Reporter Jacques Gallant,  succinctly reports: 

"In a rare move, Ontario’s top court has ordered a third trial in the same first-degree murder case, lambasting the Crown’s key evidence: an expert witness whose testimony about gang members with teardrop tattoos contained “inaccuracies” and even “falsehoods.” At the second trial for Warren Nigel Abbey related to the 2004 murder of Simeon Peter in Scarborough, sociologist Mark Totten testified that a teardrop tattoo meant one of the three things: the individual had lost a loved one or fellow gang member, had spent time in prison or had killed a rival gang member. The Crown alleged that Abbey was an associate of the Malvern Crew gang who shot and killed Peter, mistakenly believing he was a member of the rival Galloway Boys, and that Abbey had a teardrop tattooed under his right eye about four months later. Abbey was acquitted at his first trial — in which Totten was not permitted to give evidence — but the Crown appealed and at the second trial, where Totten did testify, the jury convicted Abbey. In a decision released Friday, the Ontario Court of Appeal largely sided with Abbey’s lawyers and found Totten’s evidence “unreliable,” that he “misrepresented” the sample size of gang members in some of his studies, and that statistics he provided on the stand about gang members with teardrop tattoos are nowhere to be found in his studies. The court also stated there is a “legitimate concern that Totten’s interview summaries are fabrications” in two of his studies, which contain the same quotes from three participants. Totten had denied in a different court case that he used the same gang members in more than one study. “I have concluded that the fresh evidence shows Totten’s opinion evidence on the meaning of a teardrop tattoo to be too unreliable to be heard by a jury. If the trial judge had known about the fresh evidence he would have ruled Totten’s evidence inadmissible,” Court of Appeal Justice John Laskin wrote for a unanimous three-judge panel.

“And the absence of Totten’s evidence would reasonably be expected to have affected the jury’s verdict. I would admit the fresh evidence, allow Abbey’s appeal, overturn his conviction and order a new trial.” Abbey has been in prison since his conviction at his second trial in 2011. He will be applying for release pending a retrial, his lawyers told the Star on Friday.

“We are gratified that the court found, as we had argued, that this Crown witness’s evidence was unreliable and dangerous,” said David E. Harris and Ravin Pillay in an emailed statement. “This is another example of how expert evidence can mislead a jury and contribute to an unsafe conviction.”

Totten did not return the Star’s requests for comment Friday. Neither side opted to seek permission from the Court of Appeal to call Totten to respond to the issues with his research and evidence. “As Totten has not been directly confronted with some of these deficiencies and inaccuracies in his testimony and research I think it would be unfair to make the positive finding that Abbey urges us to make: Totten fabricated or concocted part of his research, or gave deliberately misleading testimony,” Laskin wrote. “But when assessing the reliability of Totten’s opinion, I see nothing unfair in taking into account that the many serious problems in both Totten’s evidence and research, which were identified by the fresh evidence, remain entirely unexplained.” It will be up to the Crown to decide if it actually wants to re-prosecute Abbey a third time. A spokesperson for the Ministry of the Attorney General declined to comment because the matter is “within the appeal period.” (The Crown has 30 days to decide if it wants to seek leave to appeal to the Supreme Court.) The Court of Appeal had harsh words for the position of the Crown in the appeal, given the fact that the “fresh evidence” — the issues with Totten’s research — was brought to the forefront under cross-examination by Crown attorney Mary Misener (now a judge) in a separate case, R v. Gager, where that time it was the defence trying to have Totten admitted as an expert. The cross-examination took place during a hearing known as a voir dire, to determine if Totten should be qualified as an expert witness for the trial. “Totten was the Crown’s witness, a key witness for the Crown (at the Abbey trial). Yet in Gager the Crown sought to impeach Totten’s credibility and the reliability of his evidence on several matters that were relevant to his opinion in this trial,” Laskin wrote. “And then on this appeal the Crown made no attempt to contest the deficiencies, inaccuracies, and even falsehoods in Totten’s trial testimony, as demonstrated by the fresh evidence. “The Crown is not an ordinary litigant. Its role is not to obtain a conviction, but to try to ensure a fair process and a just result. The Crown has impeached Totten, its own key witness, albeit in another proceeding, and yet by its silence in this proceeding must be taken not to have challenged the many serious problems in Totten’s trial testimony shown by the fresh evidence.” The judge in the Gager case ultimately qualified Totten as a witness, despite expressing some reservations with his evidence, but neither side ended up calling him to the stand at trial. “I made mistakes, there’s no question about that,” Totten told the Star at the time. “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.” In Friday’s appeal decision, Laskin pointed out that the defence in the Abbey case could have raised the issues with Totten’s research at Abbey’s previous trial, but that it would be a “miscarriage of justice” not to admit the fresh evidence now because it is so compelling. The appeal court went as far as saying that if the Crown had not been permitted to lead with Totten’s evidence on teardrop tattoos at the second trial, “it could reasonably be expected the verdict would have been different.” Among the reasons for that conclusion, Laskin noted that the rest of the Crown’s case “was not overly strong,” which included poor eyewitness testimony and “problematic” evidence from three Malvern Crew members whose testimony implicated Abbey. Their testimony “was severely compromised” by inconsistencies and “their unsavoury pasts,” Laskin wrote. He said two of them had been granted immunity by the Crown on a number of serious offences in exchange for their testimony, while the third member, who testified at the first Abbey trial, refused to testify at the second. His testimony from the first trial was read into the record at the second trial."

The entire story can be found at the link below: 

https://www.thestar.com/news/crime/2017/08/04/ontarios-top-court-orders-third-trial-in-teardrop-tattoo-murder-case.html

PUBLISHER'S NOTE: I am monitoring this case/issue. 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: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.