Murder without a body

Yesterday, the news we’d all been dreading was confirmed by Calgary police, and today a suspect was charged:

The man police have been investigating in the disappearance of a missing Calgary family has been formally charged with their murders.

Douglas Garland was arrested near Airdrie on Monday morning, as the search for five-year-old Nathan O’Brien and his grandparents, Alvin and Kathryn Liknes, turned into a homicide investigation.

He was escorted to the Calgary police arrest processing unit on Monday evening, prior to appearing before a justice of the peace.

On Tuesday, Garland was officially charged with two counts of first-degree murder in relation to the deaths of Kathryn and Alvin Liknes, and one count of second-degree murder in the death of Nathan O’Brien.

He is scheduled to appear in court on Wednesday, July 16, 2014.

When asked how police were able to lay charges despite not yet recovering the bodies of the victims, Calgary Police Chief Rick Hanson admitted it is a ‘complexity.’

“You can still find evidence that supports a homicide, unequivocally supports a homicide charge in the absence of a body.” says Hanson while on Global Calgary’s Morning News on Tuesday.

“Without bodies, you have to build a case which is based on pieces of evidence that have to pull together at a particular time,” adds Hanson. “You assess, you add evidence, you get new evidence in, you chase down some leads, you pull more information together… and every day you’re looking at what you’ve got.”

 

After processing the horror that someone took the life of an innocent little boy, many probably wonder how Garland can be charged with murder when none of the alleged victims’ bodies have been discovered. Needless to say, that will make prosecutors’ job of proving guilt beyond a reasonable doubt much more difficult – but not impossible.

Following the arrest of New Yorker Robert Bierenbaum for the murder of his wife fifteen years earlier – ABC News posted a fairly detailed piece explaining the burden to be met by prosecutors where there is no body:

To prove there was a death in missing-body cases, prosecutors must prove there has been no sign of the person’s existence. That means presenting close friends and family members who would say they haven’t heard from the alleged victim in a long time and that the missing person would not have just gone away without informing them. Prosecutors and investigators also comb through records in 50 states to show there has been no activity in the accounts belonging to the victim, such as Social Security funds, bank accounts and credit card activity.

“You have to develop an understanding of the victim’s life, the details of their life,” says California prosecutor Richard Holmes, who successfully convicted Alejandro Gilbert Ruiz in the disappearance and murder of his wife in 1980. “Who would they contact? Do they have any medical problems that would require constant attention? What are their habits? You have to do everything you can to bring the victim to life in front of the jury. Very few people drop off the face of the earth. You have to prove that the victim is unlikely to do so, disregard everyone they’ve known in the past, especially if they have nothing to hide from.”

Prosecutors also must illustrate the circumstances under which a murder could have occurred: evidence of a troubled relationship; the discovery of the victim’s blood in their house or the suspect’s house. A confession from the suspect to either police or other people is always welcomed by prosecutors. But that alone is not enough to win a missing-body homicide case. The law mandates that prosecutors should have enough evidence to prove their case without a confession because suspects often retract their statements.

[...]

Without the presence of a body, Pertler says, questions that normally would be uncontested, such as the occurrence and place of the death and the identity of the victim’s remains, become fuel for the defense. In missing-body cases, almost every piece of evidence presented by the prosecution can become the defense target for reasonable doubt.

“Most definitely they are the toughest cases you can face,” says Pertler. “With any murder case, there are certain elements that are no-brainers, like the death of so-and-so occurred in such-and-such a county and they died in this way. But without a body, you have the other side saying, ‘There’s no way you’ve identified these remains as belonging to the victim.’ You’ve got to hope that your case withstands the defense’s request for a directed verdict of acquittal from the judge [because of lack of strong evidence] and that your case passes with the jurors, who take their job seriously.”

[...]

Though they lack more direct physical evidence, missing-body cases, some lawyers say, ultimately can be stronger than standard murder cases with bodies and are more likely to withstand appeals. Because the body is missing, prosecutors must worry more about their case being thrown out before or during trial because of a lack of sufficient evidence. These obstacles, along with the fact that they have to prove there was a death by murder make prosecutors present a more efficient case.

“Circumstantial cases can often be stronger than direct evidence cases whereas the evidence you present is less susceptible to tampering,” says Joshua Marquis, who successfully prosecuted a missing-body case in Oregon in 1993. “You don’t have all the baggage that may come if police are not as careful as they should be at the scene of a crime. And I don’t worry about these cases being overturned on an appeal. Most judges won’t let you get past [the defense’s request for] a directed verdict of acquittal at trial if you don’t present a strong case. You combine that along with the fact that you convinced a jury to convict, it’s unlikely an appeals court will overturn the verdict.”

Bierenbaum was convicted, and as Christie Blatchford notes, there have been some successful missing-body murder prosecutions here in Canada:

There’s R vs. Pritchard, a decision affirmed by the Supreme Court of Canada. It’s a 2007 decision from the British Columbia Court of Appeal which involved a man convicted of first-degree murder despite the fact that the victim’s body has never been found.

There’s R vs. Ratte, another B.C. case where a husband was convicted of second-degree murder despite the fact his wife’s body was never found. The Supreme Court dismissed the application for leave to appeal.

There’s R vs. Wristen, a 1999 Ontario case where another husband was convicted of second-degree murder though the body of his wife has never been found; that was upheld by the court of appeal.

If Garland is convicted, it may bring some closure to that poor family – but only a little, if the bodies of Nathan and his grandparents remain undiscovered.  For any parent, not knowing for sure what happened to your child must be unbearable.

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About Damian P.

Lawyer with Bedford Law, Bedford, Nova Scotia.
This entry was posted in Criminal Law and tagged , , . Bookmark the permalink.

One Response to Murder without a body

  1. mrzee says:

    “In missing-body cases, almost every piece of evidence presented by the prosecution can become the defense target for reasonable doubt.”

    This brings to mind your post on the movie “Twelve Angry Men” and the difference between individual pieces of evidence vs the totality of the evidence. The prosecutors will have to very careful about making the jury understand that difference.

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