EDITORIALS, LOCAL NEWS

Judge’s Findings in Grotesque Attempt Murder Case and Indictment of Justice

domestic violence

Crime reporter James Turner wasn’t kidding when he told me the facts surrounding the shooting of a twenty-two (22) year old mother of two were horrific.

Turner wrote an abbreviated version of the story which was published in the Winnipeg Free Press last week.

The Police Insider weighed in and published an article suggesting the Judge failed to connect the dots in what should have been a slam dunk decision to convict the twenty-four (24) year old accused offender of attempt murder.

(The Police Insider Story recorded over 1,200 views the day the story was published.) 

Turner made good on his promise to publish a transcript of Court of Queen’s Bench Justice Chris Martin’s decision for, “You and others to chew on.”

So I chewed on it.

After reading the document I was left with an extremely bad taste in my mouth.

The case merits further analysis for the 1,200 or so Police Insider readers who read the initial story.

THE FACTS:

The offender, Jared Smoke (24), was involved in an on / off intimate relationship with the victim in this case.  He is also the biological father of the victim’s four (4) month old child.  The victim has a two (2) year old child from another relationship.

On October 21, 2009, Smoke was at the victim’s residence with a number of other people.  Both children were present during this time.  At some point in the late afternoon, Smoke and the victim became involved in a heated argument that evolved into a physical altercation.

During the altercation Smoke repeatedly punched and kicked the victim in a vicious violent attack.  The beating took place in front of several guests and the children.  Smoke subsequently dragged the victim to a bedroom where the assault continued.

After punching and kicking the woman several more times, Smoke retrieved his sawed off bolt-action .204 Ruger rifle from a chest of drawers, pointed it towards the woman’s head and pulled the trigger.

As the shot was fired, the victim managed to raise her arm in front of her face in her effort to defend herself.  The bullet struck her forearm and then her head.

The medical report noted massive destruction to her right forearm, significant soft tissue defect, major nerve damage to the muscles supplying her forearm and hand and arterial injury.  The bullet apparently glanced by her right cheek, right skull area, causing a scalp wound and fracture of both her cheek and skull.

After the shooting Smoke and the other guests fled from the suite leaving the victim in a pool of blood with the infant in a bed and the two-year old wandering about the residence.

A neighbour heard screaming and a loud bang and called Police.

The Police attended with EMS, broke into the suite and came to the aid of the victim and her children.

Smoke was arrested approximately one (1) month later.

The case took a remarkable 4 1/2 years to be concluded.

THE CROWN:

The Crown was represented by a senior Prosecutor Daniel Chaput and Adam Bergen.  Chaput is an extremely bright, dedicated and experienced Crown Attorney.  Their position – Smoke intended to kill the victim when he discharged the rifle at her head.  They relied on the following facts to prove their case;

1] Smoke was assaulting the victim when he dragged her into the bedroom to continue the assault.

2] That he was ‘seeing red,’ so to speak, in terms of his anger at her.

3] That he retrieved the rifle from where he put it.

4] That he was holding the rifle in a shooting position with his right hand on the pistol grip and finger on the trigger, using his left had to support or hold the rifle by the fore stock.

5] That the safety of the rifle was disengaged so the rifle was in a firing position.

6] The rifle was aimed downward at the victim’s head area when it discharged.

7] After shooting he fled the scene without any attempt to check on her, or help her and disposed of the rifle.

The Crown says the inferences to be drawn from these facts are that the only reason for dragging her to the bedroom was to use the gun that he knew was there.  And, in shooting her at near point-blank range toward the head, he intended to kill her.  Further, his post-offence conduct supports this inference in that it demonstrates the shooting was not an accident.

They say that Smoke and the victim’s testimony to the effect the shooting was an accident is a fabrication and both inconsistent with the evidence and logic.

THE DEFENSE:

The defense suggested the shooting was an accident precipitated by the victim who grabbed for the rifle causing it to discharge.

They also suggested Smoke’s statement to Police, where he denied having the intent to kill, should be relied upon to raise a reasonable doubt.

THE JUDGE:

To his credit, the Judge rejected the accidental discharge theory advanced by the defense and saw through much of  Smoke’s contrived testimony.

“There was no real reason to drag her to the bedroom except to get the rifle and to use it in some manner as part of his overall assault upon her,” he concluded.

As is typical in many relationships permeated with domestic violence, the victim in this case provided testimony in support of her abuser.  In fact, she accepted the blame for being shot because she started the argument.  The acceptance of blame is a byproduct of domestic abuse and conditioning by the abuser.

In this case, evidence of this conditioning came in the way of a phone call intercepted by Police on Feb 4, 2011.  “All you got to do is say it was an accident, it was an honest accident, I love him, it was my fault.  He shouldn’t be in jail,” Smoke said in his effort to coach the victim.

In this case  the Judge made a clear finding that Smoke deliberately shot the victim.

“Further, to be clear, I find that neither pulling the trigger, nor where the rifle was pointed with and fired was an accident,” he said.

The only thing left for the Judge to decide was the issue surrounding intent, a critical requirement for a conviction for attempt murder.  To prove intent, the Crown has to convince the court the accused intended to kill the victim.  The offenders, “state of mind,” becomes a critical issue.  The Judge has to ask himself if there is “another reasonable inference from the facts to which the benefit of doubt must be given to the accused.”

In this case, Judge Martin astonishingly concluded that Smoke, “Meant to use the gun in the assault and in doing so he discharged the gun but without specifically meaning to kill her.”

“I am not sure that he specifically intended to kill her.  And as such he’s entitled to the reasonable doubt on this issue,” he said.  “I find him not guilty of attempted murder.”

To add insult, Judge Martin suggested the Crown’s case would have been easier to prove had the victim been murdered.

ANALYSIS:

The idea that someone could get a loaded firearm, level it at a defenseless person, place a finger on the trigger and intentionally fire it at that person’s head, without having the intent to kill, is nothing short of preposterous.

If Smoke didn’t have the intent to kill his victim then I would ask Judge Martin to explain what his intention could have possibly been.

Do you shoot someone in the head to scare them, warn them or teach them a lesson?

How could someone shoot another human being in the head and have a reasonable expectation that death would not occur?

As one Police Insider reader put it, “Does the judge imagine himself so elevated above the masses, he sees innocence in the disadvantaged Native man before him, that commoners would miss.”

If Smoke didn’t intend to kill his victim then he would have been satisfied with the results of the vicious beating he delivered using his fists and feet.

The evidence is clear, Jared Smoke was not satisfied.

The can be no reasonable doubt his anger, rage and use of the firearm translated to an intention to kill.  There is no other logical or common sense conclusion that can be made.

Judge Martin’s failure to convict Smoke of attempt murder undermines efforts Prosecutors, Police and educators have made to raise awareness and confront domestic violence and abuse in our society.

The shooting of the victim in this case was an all to predictable event in the final stages of the toxic cycle of domestic violence and abuse.  The attack must be condemned, denounced and adjudicated with the full force of the law.

A conviction for aggravated assault comes with a maximum period of fourteen (14) years incarceration.

It will be interesting to see how close Judge Martin comes to the upper limit when he sentences Smoke in the coming months.

Stay tuned….

FACTOID: 

On average, every six days a woman in Canada is killed by her intimate partner.  In 2011, in eighty-nine (89) reported spousal homicides, seventy-six (76) or 85% were women.*

*Source: Canadian Women’s Foundation

RELATED LINKS:

The Police Insider – “Judge Fails to Connect the Dots in Grotesque Domestic Assault”

Winnipeg Free Press – James Turner “Attempt Murder: The Prosecutions Uphill Battle” (Includes Transcript of Judge Martins decision)

4 Comments

  1. Glad it’s not just me…thanks for commenting!

  2. Food for thought….

  3. Maximum sentence should be the result. And even though I’ve heard attempt murder is hard to prove, I also have no clue what the intent could possibly have been, if not to kill.

  4. One of the concerns I have involves the distinction (if there is one) between an altercation (which suggests two participants) and an attack (which suggests an assailant and a victim). Violence rarely begins physically. Is responding verbally to a verbal attack equivalent to participation in an argument? Is responding physically to a physical attack equivalent to participation in a fight? Is responding likely to leave a victim accused of escalating the violence?

    If the answer to these questions is yes, how do the described options of “run, hide, or fight” when confronted with an active shooter play out in a court of law? Do we expect parents (or any adult, for that matter) to leave children in such a situation?

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