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Judge's patience with accused killer wears thin at Laura Babcock murder trial: DiManno

In his second day of calling evidence for his defence, Dellen Millard, one of two men accused of murder, got into trouble with Justice Michael Code

Dellen Millard, left, and Mark Smich, centre, have pleaded not guilty to first-degree murder in the presumed death of Laura Babcock.

Dellen Millard, left, and Mark Smich, centre, have pleaded not guilty to first-degree murder in the presumed death of Laura Babcock.

Perhaps only a non-lawyer would, deliberately or unwittingly, antagonize the judge at his murder trial.

Perhaps Dellen Millard, a naïf at the bar — he’s representing himself — was genuinely flummoxed by the rules of direct examination.

It takes years of study and articling before legal fledglings enter the profession and are given custody of so serious a trial. Millard is just into his sixth week of impersonating a lawyer.

In his second day of calling evidence for the defence — his defence — Millard summoned an archeologist with the Canadian Museum of Nature in Ottawa to testify about bones which were photographed July 23, 2012, burning in an incinerator that investigators would seize more than a year later at his Kitchener-area farm property.

These bones, the prosecution contends, were the remains of 23-year-old Laura Babcock, allegedly cremated on that night.

As evidence, the bones exist only as a photographic image of poor resolution.

A Crown witness, an expert forensic anthropologist, scrutinized the handful of photos and told court earlier this month that the objects in the incinerator “appear similar to human beings,” more so than bones of a deer or any other animal, though Dr. Tracy Rogers emphasized that she couldn’t be certain.

It was for this crucial point that Millard brought forward an expert of his own. Except Scott Rufalo is neither a forensic anthropologist nor any other kind of anthropologist. His expertise, as outlined in a CV, extends to the area of zoo archeology — animal remains, sometimes thousands of years old.

“It should be stated that I’m offering an opinion based on a poor quality image that is based on patterns of shadow and light,” Rufalo told Millard under direct questioning as the magnified images were shown yet again to the jury, the witness pointing out his interpretation of markers such as projections and indentations which he concluded pointed away from human specimens.

“What I see there is my opinion with what you’d expect with a deer or other animal of related size and doesn’t match easily with human bones, if I have accurately judged the photograph.”

But under cross-examination from Crown attorney Jill Cameron, Rufalo — who admitted that this was his first time testifying at a trial — vacillated somewhat. “It’s possible it could be a human radius,” Rufalo allowed. Adding: “I do not study the physical remains of humans.”

So no, a bone he’d originally suggested came from a deer tibula was likely not, upon further consideration, from a deer, at least not when analyzing this specific enlargement from the two photos Millard displayed. And in the report he’d given to Millard, he hadn’t included the observation that another bone could be part of a human femur.

In his re-examination, Millard attempted to undo some of the damage. This is where he got in trouble with Justice Michael Code, who cautioned that re-examination could not delve into areas which hadn’t been raised in direct examination of his own witness or emerged in the cross.

“You’re repeating your questions, now stop it,” Code told Millard, sharply. “That’s an order.”

Millard: “Shall we break momentarily?”

Code: “No, we shan’t.”

Millard: “If there’s concern that my question is inappropriate, do you want to excuse the jury while we discuss it?”

Code: “No.”

In front of the jury — and of course they have no knowledge what occurs in the courtroom in their absence — Code has gone to extreme lengths of patience through the thrust-and-parry process, at several junctures instructing the defendant to the point of practically putting questions to properly ask in Millard’s mouth.

“Your Honour, I apologize,” said Millard. “This is the first time I’m doing this.”

Millard and co-accused Mark Smich have both pleaded not guilty to first-degree murder in the (presumed) death of Babcock, who vanished shortly after Canada Day, 2012. Her remains have never been found.

Babcock had known Millard for a long time, dated him briefly previously, and certainly seemed to have a lingering crush on him in early 2012, according to a trove of retrieved texts that have been entered as exhibits. In those months, Millard and Babcock had sex, which she boasted about to Millard’s girlfriend at the time. It was for this reason, the Crown contends — the distress Babcock was causing to his relationship with the other woman — that he decided Babcock had to be eliminated. “First I am going to hurt her. Then I’ll make her leave,” he texted his girlfriend, Christina Noudga in April. “I will remove her from our lives.”

Millard, an aviation rich-boy heir who clearly does not underestimate his own intelligence, has been just as clearly relishing his starring role at trial, having adopted all the lawyerly mannerisms and lingo.

He’s a quick study, an adept role-player, although jurors may wonder about the relevance of testimony from the three defence witnesses he’s called so far.

One of them on Tuesday, however, did give some startling testimony.

Gabe Austerweil insisted he’d seen Babcock in October, 2012, buying nuts at a store in his mid-Toronto neighbourhood, three months after the prosecution says she was killed and her body incinerated.

Austerweil’s son, David, had dated Babcock for about three months in the winter of 2012. David was living at home and Babcock, said the witness, stayed at his house four or five nights a week, so he was quite familiar with her.

When he spotted Babcock at the store, she was wearing a brown leather bomber jacket and leather pants, talking to the cashier. He claims to have recognized her face and her voice, though the outfit was unusual, not her usual style. “To me she appeared a lot thinner than I remember. I’d never seen her dressed up as she was. She appeared like she was ‘working,’ if you will, in the entertainment business.”

Court has heard that Babcock aspired to be an actress but at the time of her disappearance had been working for an escort agency.

Millard stumbled again, procedurally, when he attempted to question Austerweil, in clumsy fashion, about the statement he gave to police on May 22, 2013, to “refresh” his memory. Code once more tried to straighten out the muddle for Millard and the defendant again apologized, with a hint of disingenuousness. “Sorry Your Honour, I just got the hang of cross-examination.” Now he was doing direct. “I’m switching gears.”

Austerweil read over a section of that statement, in which he apparently told police he’d last seen Babcock in March, but didn’t specify which year.

“Are you absolutely certain it was October, 2012?” Millard asked. Austerweil: “I’m sure it was October, 2012.”

It was Smich’s lawyer, Thomas Dungey, who actually pointed out the discrepancy. Austerweil responded he was now confused because his son and Babcock broke up in March 2012 and the sighting was months later. He remained adamant on that point; no question — 97 per cent sure he’d said in the police statement — that it was Babcock.

“People have said I’m crazy but that’s how I feel.”

In cross-examination, Cameron went to the same area of dispute. If he’d seen Babcock in October and he knew that her parents were frantic about her disappearance — friends and family had not heard from her since July 2 — why hadn’t he said anything to them?

“Because I felt that Laura, based on the conversations I had with her, that . . . in my mind, she wasn’t missing. She wanted to be missing.”

Cameron put up on the screen a photo of Babcock that police released when she went missing — blond rather than her usual brunette.

“Would it surprise you to know that’s a picture of her?” Cameron asked of the witness, who’d just insisted that he was good at recognizing faces.

Austerweil: “Yes.”

The trial continues.

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