Judge Sentences Garbles

There’s a Shania Twain song, “What made you say that?” It could have been the theme song of Judge Silverman's closing instructions to the jury in the Dennis Knibbs murder trial. Silverman later recalled the jury, telling them that there were several “mistakes or slips of the tongue that I have made and will attempt to correct.”

There was room for mistakes though. There was built-in redundancy in his instructions which lasted four hours (that’s after 2 hrs. worth of lunch and coffee breaks are subtracted). He kept circling back to key points that the jury would have to remember in the jury room.

The defense of “self-defense”: If it fits, you must acquit

Judge Silverman told the jury that in determining whether Knibbs was guilty of murder, they had to consider the defense of “self-defense”. If it fits, you must acquit. That the gist of his message.

In explaining self-defense, the judge told the jury that the law allows Knibbs to defend himself, or someone under his protection, from assault as long as he doesn’t use excessive force. Was Knibbs’ cousin Ian Liscombe under his protection? Knibbs had just watched Liscombe shot in the abdomen by Ekoh Habib who Knibbs is accused of then shooting.

First mistake:

Towards the end of his instructions, Judge Silverman had told the jury that they could consider not only whether Knibbs had been acting in self-defense but whether Ekoh Habib had been acting in self-defense when he fired the first shot. Both the defense and the prosecution agree that Habib fired the first shot after Liscombe was attempting, first alone and then with Knibbs’ help, to push open the door of the room in the New Wings Hotel where he was staying

The judge’s instruction to the jury, Orris argued, “gets into the question of whether Mr. Habib was the one acting in self defense from Mr. Knibbs or Ian [Liscombe] and this was not something that the law required they consider. “I better tell them not to pursue that analysis” said Silverman. And he did tell the jury just that.” “Whether or not Habib was acting is self-defense: take that off your radar.”

Recipe for murder

The judge explained to the jury that there are “five ingredients” in murder. The prosecution has to prove to you that all five ingredients are present, or they haven’t made their case that Knibbs is a murderer. You have to be convinced beyond a reasonable doubt that the prosecution has given all five of the following ingredients, or the prosecution hasn’t made their case for murder.

1. identity of Mr. Knibbs as the offender, the “shooter” of one of the guns.
2. time and place of the events
3. Mr. Knibbs committed an unlawful act
4. An unlawful act caused the death of Mr. Habib. “Certainly the shotgun caused his death”, the judge added.
5. Knibbs either meant to cause the death of Mr. Habib or meant to cause bodily harm that Mr. Knibbs knew would cause death and was reckless about whether it caused death.

If all five ingredients are present – you mustn’t have doubts about even one – you can consider Knibbs a murderer.

But it ain’t over ‘til it’s over. Even if you conclude that you have all five ingredients that make Mr. Knibbs a murderer, Judge Silverman told the jury, you can knock his conviction down from murder to manslaughter – if you are convinced he was provoked by Mr. Habib.

Two more mistakes:

As the judge repeated his instructions to the jury, he told them that if you have a doubt about whether you have even one of the five ingredients for murder in the case of Knibbs, “you will find him guilty on both counts”, murder and manslaughter. Ooops! He should have said “not-guilty”, he told the jury after Orris brought it to his attention.

Judge Silverman also told the jury that if you find beyond a reasonable doubt that the first four ingredients are present but not the fifth, “go on to manslaughter”. “Not correct,” Silverman admitted, when Orris drew it to his attention. If you have a reasonable doubt on ingredient 1,2,3, or 4, Silverman explained, “the result is not guilty on both counts.”

Defense lawyer couldn’t believe his ears

When Orris first pointed out one of the mistakes to Judge Silverman, he indicated that he didn’t quite believe his own ears. He told the judge that he thought he might have heard it wrong. Orris was listening to Silverman explain to the jury that Crown prosecutors had to have convinced them that they had the five ingredients in this case before they could find Knibbs guilty of murder.

Fourth mistake:

The first of the five ingredients is of course, Judge Silverman told the jury, that you have to know the “identity” of the shooter. “I don’t think you’ll have much trouble finding that”, he noted. Did Orris hear that correctly? The judge checked the transcript and confirmed that he had in fact said, “You’re not going to have any trouble determining the identity of the shooter.” I can’t believe I said that, Silverman said, as Knibbs watched. “I’ll correct that.”

A few minutes later, Silverman told the jury, “This one was a straight slip of the tongue” and a “serious one.” He said emphatically, “If I said that, I’m pulling that back.”

It was the drugs talking

Judge Silverman would no doubt be the first to admit that he’s not perfect. He’s the judge who reminded the jury twice that experts are "not deities" . They can make mistakes, he cautioned.

At least Judge Silverman was non-defensive when his inconsistent statements were brought to his attention -- unlike witness after witness in this case who excused their own inconsistent statements by saying, ‘Don’t blame me; it was the drugs talking’.

Vancouver Police: from forensic fumbling to racial profiling

A cliffhanger. That’s how the murder trial of Dennis Knibbs ended it’s third day on Thursday.

Michael Vandenaneele, a former cocaine addict turned journeyman welder, testified that he dropped by the New Wings Hotel to buy cocaine the night of April 4, 2005. He was chatting with the desk clerk, when he saw Dennis “Rocka” Knibbs and his cousin Ian Liscombe come down the stairs with a “guy in arms”. The guy was “a very close friend of Ekoh’s” – Ekoh being a nickname for Nabib, one of the men Knibbs is accused of shooting that night. Liscombe and Knibbs were yelling at the man they were holding, demanding to know Ekoh’s whereabouts, whether he was in the building. When they got to the first landing, they told the guy to get out of the building.

Liscombe and Knibbs then stood around on the landing. “We were congregating, talking,” Vandenaneele recalled. A few minutes later, a native guy living in Room 15, Charlie being his surname, came out of his room. “That drew Ian’s attention”, Vandenaeele said. “Ian asked him if he had seen Ekoh or if Ekoh was in his room.”

Liscombe was headed back upstairs with Knibbs trailing when, Vandenaneele says, he doesn’t know “what possessed” Liscombe to first walk over to Room 15 and open the door. The door opened about 18 inches, and then slammed back in Liscombe’s face. “Rocka was right behind Ian trying to push the door. Rocka was pushing higher on the door ‘cause he’s a little taller than Ian.” Then Vandenaneele spotted the shot gun: “I could see about 2 feet of a barrel….when the door flew open, you could see the barrel of the gun.” The witness who went over the sequence of events a couple of times said, “That’s when one gun went off, I seen Ian fall to the floor.”

It was here that spectators were left hanging. Who was on the other side of the door when the gun went off. Who was holding the shot gun? Was it Ekoh? Ekoh of course ended up dead.

Vandenaneele’s story is corroborated by testimony given this morning by Laura Lee Wayne, an admitted prostitute and daily user of “rock” cocaine and sometimes heroin. Wayne, a thin 25 year old with bangs and neck length brown hair with an obvious auburn rinse, lived at the New Wings at the time the shootings occurred. She had been upstairs “getting ready” to go out to work as a prostitute, when she heard a loud noise downstairs, followed by several more loud noises. When she went down, she saw Knibbs standing near Room 15. “I heard him say, ‘He shot my cousin first.’” His voice sounded “scared” to her. She also saw a shot gun sticking out of a bag on the floor, which she said she picked up and took downstairs to police, although the transcript of her earlier police interview has her saying she “got caught with the shot gun.”

Statements made in a police interview by another witness, Susan Panich, an admitted cocaine addict, also dove tails with Vandenaneele’s testimony. Panich, a skinny 45 year old with brownish blond shoulder length hair, was living with her boyfriend Ian Liscombe at the New Wings when he was killed. She and Liscombe sold drugs. In her view, Liscombe and his cousin Knibbs got along “very well”. But she acknowledged that there was some animosity between Liscombe and Echo, the latter whom the prosecutor described as having a “dark complexion and a goatee”. In her view, Echo “was jealous of Ian.” who was more successful at selling drugs. “He tried to cut Ian’s grass”, she said, explaining that she meant “take his customers away.” She testified that Echo hit Liscombe over the head with a bat, requiring 1 ½ -2 inches of stitches. “Echo was barred out of the hotel the day he hit Ian on the back of the head.”

The prosecutor asked Panich to recall “any conversation you may have heard between Rocka and Ian about ‘roughing someone up’”. But he could get no acknowledgement from her that any such conversation had occurred. The prosecutor pointed to a section of the transcript of her interview with police, asking her to read it, “Does it help you recall any conversation?’ She would concede only that Liscombe was “a little pissed off.”

In addition to reluctant witnesses in withdrawal, today saw the return of the VPD’s mistake prone forensics expert, Constable Mark Christensen. Yesterday, Christensen had admitted that his report had falsely identified a large bullet hole as being on the left side of a victim’s chest and a small one being on the right side when in fact it was “the opposite.”

Today Christensen came to court armed with a voluntary admission that he had incorrectly reported the condition of the shot gun when it was delivered to him from the New Wings crime scene. When he opened the bag and removed the shot gun, the slide containing a fingerprint of Knibbs’ was not in a forward position as he had reported yesterday, but back. And the chamber was not closed as he had reported, but open.

Christensen also acknowledged that in his 2005 report, he had mistakenly identified a fingerprint on the shot gun as being from the left “ring” finger when in fact it was from the left “middle” finger. “I wrote the wrong thing down in my report,” Christensen said. “You made a mistake”, defense lawyer Glen Orris asserted, driving the point home as the jury listened. “So you’ve worked your way back from patrol since then?”, Orris kidded him. “I’m not infallible”, Christensen politely retorted, adding that he’d like that fact noted on the record, and shown to his wife. Laughter.

Christensen excused his false identification of the fingerprint as being from a left “ring” finger instead of a left “middle” finger as a “typographical error”. He was prone to that excuse. He had used it yesterday when it was pointed out that he had identified Constable McLaughlin, the officer who had taken the crime scene photos, by an incorrect badge number in his report. [McLaughlin had taken the crime scene photos, Christensen explained, with a camera with a malfunctioning flash. Many “didn’t turn out” and had to be taken again at a later date.]

There was one mistake made by the VPD in this case, though, that could prove more embarrassing than any made by Constable Christensen, a mistake inadvertently revealed by Orris: racial profiling. As Orris and the judge reviewed sections of the transcripts of an interview police conducted shortly after the murders with Laura Wayne, a 23 yr. old resident of the New Wings, Orris mentioned that the VPD questioner had “asked her about her relationship to black guys”, specifically if it was a “pimping” relationship. Wayne, who looks Caucasian but has been identified by police as "native", told police that this was not the case, that she was “an independent”.

Laura Wayne did not appear to be under Knibb's control, although she was living with him in Room 50 until "they shut the Wings down" after the shootings. "We were sort of seeing each other but not really", she testified. She had actually developed a "boyfriend-girlfriend" relationship with another New Wings resident, John Whalen, whom she called John Jr.

Laura Wayne did not make herself easy for a man to control, as the beleaguered prosecutor found out: she barked at him in response to questions, once saying "Fuck!"under her breathe, and twice firmly chastised him, "I think you've established that!" Her rebellious nature also permeated the police interrogation of her immediately following the shootings. When prodded about her drug use, she told police, "I'm a professional; I should get a badge for it". She went on to say, “It’s like taking a shit and wiping your ass. I do it everyday

Overall, testimony today opened wider the window onto one of the worst addresses on the Downtown Eastside. Tenants behind “every second door” of the New World Hotel had drugs for sale, according to Panich. “Ian, John, Rocka, Susan, Teeth, and Donnie”, were selling drugs out of there, according to Van Vandenameele. Two machetes were found slid between the mattress and the box spring in Room 15, according to Christensen, and a bullet was found on the floor as well as a couple of shell casings. Lots of small clear plastic baggies were found in the room too, the type Christensen knew to be used to package drugs for sale. And drugs were found in the pocket of a beige coat. Police style batons were not an uncommon sight, according to Panache: “A lot of the guys have them”. Knibbs’ had such a baton in his hand as he stood in the hall after the shootings, according to Wayne. Liscombe had a handgun in his room according to Pinach, a handgun which Wayne told police he carried in his pocket “like a fuckin’ wallet”.

A reminder that the New Wings world was not confined to a few bad blocks on the Downtown Eastside came during questioning of Constable Christensen. Orris asked about a search warrant listing blood stained clothing, a police style baton, and a 38 caliber revolver, served to a “young woman who was obviously frightened” at 1421 East 2nd Ave. A nicer neighbourhood.