Mark Smich's lawyer puts Laura Babcock’s death on Dellen Millard
“What’s Mark Smich doing here? He’s not part of the love triangle. He’s not part of the motive,” court told.
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If it were possible to cut a rut in the air, there would be a floating furrow traversing Courtroom 2-7.
From the podium where Thomas Dungey stood delivering his closing address to the defence table where Dellen Millard sat dispassionately typing at his laptop.
Millard, who is not Dungey’s client.
Millard, who, having given his own parting shot to jurors the previous day — he’s representing himself at trial — now has no opportunity to say another word to them.
But with his back to the defendant he is representing, co-accused Mark Smich, Dungey repeatedly and theatrically swung out a hand, arced an arm, aimed an accusatory finger.
He’s the guy all the evidence of first degree murder points towards, Dungey exclaimed in a quite shout-y performance.
It was old-time revival dramaturgy on Wednesday, a throw-back, from the veteran lawyer with the raspy voice.
“The main thing the Crown said is that Mr. Millard was involved in what’s been termed a love triangle. Well, who’s involved in the love triangle? Christine Noudga, Dellen Millard and Laura Babcock. Not Mark Smich.
“What’s Mark Smich doing here? He’s not part of the love triangle. He’s not part of the motive.”
To take it from the top, compressing what has been a seven-week trial, 23-year-old Laura Babcock is the victim, allegedly slain by these two defendants on July 3-4, 2012, her body put through an industrial incinerator a few weeks later. Noudga, who’s never stepped foot in this courtroom, was Millard’s girlfriend back in the day. Babcock and Millard had dated briefly a few years earlier. But Babcock, in a purported incident of mutual spite, had bragged to Noudga that she was still sleeping with Millard. That got up Noudga’s nose. And from those crisscross resentments erupted a plot to commit murder, hatched by Millard, abetted by Smich and committed in cahoots — killing Babcock and disposing of her remains, which have never been found.
That’s the prosecution’s theory, in a nutshell, albeit supported, says the Crown, by a torrent of circumstantial evidence including thousands of text messages, configured cellphone tracking, Millard’s $16,000 purchase of “The Eliminator”, numerous incriminating photographs (retrieved from Millard’s phone) and one deeply disturbing rap video starring Smich, the lyrics to which he wrote, says the Crown, on July 23, 2012, within an hour, court has heard, of Babcock’s corpse being fed into the incinerator.
“Christina Noudga is the person that is the cause allegedly of the death of Laura Babcock,” Dungey all but hollered, with the onus of proof on the Crown.
“The one person, Christina Noudga, that could have told us there was such hatred that it could have inspired Millard to kill.’’
Never called to the stand.
“They have failed you,” said Dungey. “They’re saying you decide whether Mark Smich is guilty and you live with that for the rest of your life.’’
As Dungey well knows, proving motive is not required.
While simultaneously stressing that onus of proof never shifts from the prosecution to the defence, Dungey spent much of two hours on his feet shifting blame from Smich to Millard.
Millard and Smich have both pleaded not guilty.
“I’m not here to demean Mr. Millard. He did quite a good job demeaning his own character presenting his own defense.”
Millard, 32, is self-represented, personifying the yin and yang of defendant and defence lawyer. His closing address was a day-long affair on Tuesday.
“Where is the evidence?” asked Dungey of fitting Smich, 30, into the triangle frame. “There is no evidence, none, not an iota.’’
About those thousands of texts, “did you ever hear even one message showing that my client was involved with Miss Laura Babcock? He didn’t even really know Laura Babcock.”
From animated to contemptuous, Dungey hit all the high notes.
“There’s got to be some skin in the game, folks. There’s got to be some substance.”
The red suitcase, belonging to Babcock, found in Smich’s home 18 months later supports nothing but speculation, he asserted. The mere fact Smich still had it, as Babcock remained missing, “demonstrates innocence, not guilt.”
The two young men who testified that Smich had told them about “killing a girl” are dubious characters, said Dungey — one a former heroin addict — who ought not be believed.
“Would you want your son convicted on that testimony?” he yelled at the jury.
The big hole in Dungey’s recap of the evidence is the rap video he scarcely mentioned.
The bitch started off all skin and bone/now the bitch lay on some ashy stone/last time I saw her’s outside the home/and if you go swimming you can find her phone.
Flipping over to the undercard of the jury address, lead Crown Jill Cameron launched her closing submission with a haunting juxtaposition of that video and another short bit of footage, shot by a Babcock friend, just before she disappeared, a vignette in which the young woman is urged to meow. Which she does, with a giggle, and that — the last known image of Babcock alive — brought a wistful smile to the face of her mom, sitting in the front row.
The parents have had to watch the 34-second rap video on countless occasions; have seen footage of The Eliminator doing its business, embers floating into the air, their daughter’s body apparently burning inside; have looked at photos of a few bones that may have been their child’s remains inside the machine’s oven compartment; have seen texts between Millard and Noudga referring to Laura as a parasite, a herpes virus; have heard excruciating details about their daughter’s itinerant lifestyle in those final few months; have sat through testimony from men who paid for Babcock’s services as an escort; have revisited the mental illnesses that seized their daughter in the last year of her life. But here was Laura laughing and grinning, showing the dimensions of a lively, charismatic personality to which several friends have attested.
She is not just a dead girl. She is not just a vanished girl. She was their flesh and blood, a dear friend to many, with hopes and ambitions.
“Everywhere Laura went, she left a foot print,” said Cameron.
In texts, in emails, in photos, in her use of credit cards and banks card, on Facebook.
All of it stopped dead after July 4.
Methodically, crisply, Cameron took the jury through the final days of Babcock’s life, as tracked by her phone usage, from June 26 to July 4, until the pings off cellphone towers ceased. Her BlackBerry has never been recovered.
On June 30, Babcock is frantically calling around, looking for a place to stay. At 2:30 a.m. she’d texted Millard.
Why didn’t Millard go get her then? Cameron asked. And answered her own question for the jury: “I submit it’s because they weren’t ready for her. (Millard) doesn’t have the gun yet. He doesn’t have the incinerator.”
The Eliminator hadn’t arrived. The gun, a .32 calibre revolver, he was still arranging to purchase from a street dealer. Although, to be clear, the prosecution has never posited how Babcock was killed.
Twenty-three text exchanges and four phone conversations between Babcock and Millard on July 2. He picked her up around 7 p.m. the next night at the Kipling subway station and they eventually arrive at his Etobicoke house.
Earlier, Millard had texted Smich — at that address with his then-girlfriend Marlena Meneses — to say he’d be home soon and “don’t be out front.”
Cameron: “I submit to you that Mr. Millard did not want Miss Meneses to see Laura. Or perhaps he didn’t want Laura to see Mark. Because they were going to kill her.”
Millard and Smich, who otherwise text each other countless times a day, even when they’re under the same roof, go phone-silent between 7:33 p.m. and 12:48 a.m.
It was during those hours, says the prosecution, that Babcock was murdered.
“We don’t know how they killed Laura…what (Millard) did to make good on his promise to ‘hurt her’,” Cameron told the jury. “We don’t know if she was stabbed, strangled or beaten. We just don’t know.”
But they’d been plotting it since April, said Cameron. And the very next day, Millard put in an urgent order for a new mattress.
“We will never know,” continued Cameron. “But they killed her. And then they tried to cover it up by burning her body. They took pictures of what they had done and didn’t destroy them. They kept her possessions as if they were trophies. Fortunately for us they didn’t do a very good job of covering up their crime.
“The plan was to murder Laura Babcock and eliminate all traces of her body from this Earth.
“Feel sharp the injustice, as they stand here today, and say Laura is out there because the Crown can’t produce their body. This was their plan from the beginning. They thought then, and they argue now, that no body equals no murder. And they are wrong.’’
Justice Michael Code is expected to begin charging the jury on Thursday.