fair ? old but still relevant
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Professor Alan Young on Karla Homolka's Deal
Why 'devil' got her deal; Karla's testimony called crucial 'We didn't have enough evidence'
The Toronto Star
Sat 28 May 2005
Page: A27
Section: News
Byline: Linda Diebel
Source: Toronto Star
Karla Homolka is a little more than five weeks away from the next chapter of her life thanks to a pact she made with Ontario prosecutors in 1993. It shall forever be known as the "deal with the devil" and it is shrouded in myth, mystery and misconception.
Let's get the most glaring misconception out of the way first.
The most popular opinion is that Homolka got away with murder because she cut her deal before the discovery of six home-made videotapes showing Homolka and her ex-husband Paul Bernardo sexually abusing their victims.
But the principal architects of the deal say that's not right. There would have been a deal in any case, because the Crown prized her cooperation and testimony against Bernardo. They needed it so badly, in fact, that they would approve a second, lesser-known deal a year later that gave Homolka even broader immunity.
Without that deal, she might have shared the fate of her ex-husband, who was convicted in 1995 of first-degree murder and jailed for life in the kidnapping, rape, torture and murder of two schoolgirls in 1991 and 1992.
Homolka got a sweeter deal. She fled the couple's matrimonial home in St. Catharines in early 1993 after Bernardo beat her with a flashlight and, in legal terminology, "rolled over" for the Crown. That May, after three months of negotiations, she agreed to testify against him in return for pleas to two counts of manslaughter and two concurrent 12-year sentences.
She promised to tell the truth about the entire horror show. She would provide evidence in the deaths of Leslie Mahaffy, Kristen French and her sister Tammy Homolka, 15, who inhaled her vomit and died in 1992 after being drugged by Homolka and sexually abused by Bernardo.
She also promised to give evidence about the series of rapes that occurred in Scarborough from 1987 to 1992, as well as information about "any other criminal activity she has participated in or has knowledge of."
Public outrage about the deal has not subsided. There is a belief that the beautiful and cunning Homolka, now 35 and scheduled to be released from a Quebec jail on July 5, got away with murder.
At the outset, she told police there were videotapes. Bernardo and Homolka set up the camera and went to work on their "sex slaves." The tapes were deemed so horrific, so soul-destroying to the families involved, that the attorney-general's office made the highly controversial decision to destroy evidence by burning them in 2001.
If only - or so the theory goes - prosecutors had just had these tapes in 1993, her fate would have been different. If only they had seen Homolka taking turns raping a drugged and bound Mahaffy, 14 and French, 15.
If only they had seen her drugging and sexually abusing another victim, Jane Doe, who survived, or the attack on Tammy. She used the animal anesthetic Halothane obtained from the veterinary clinic where she worked.
(Neither Homolka or Bernardo was ever charged in Tammy's death although the circumstances, as related by Karla, were read into the record at her brief trial.)
The murders weren't taped, or so it is believed. French is still alive at the end of her video segment; she is heard calling Bernardo a "bastard." And there is no footage of Bernardo dismembering Mahaffy's body with a power saw and handing the parts to Homolka for bagging. She describes to authorities the sound of the girl's head hitting the ground. They encased the parts in cement and dropped them into a lake.
Police didn't have the tapes because Bernardo hid them in a pot light in the bathroom ceiling of their home. Authorities didn't get their hands on these tapes until September 1994, by which time Homolka was in jail.
Retired Ontario judge Patrick Galligan embraces the "if only" theory in his inquiry into the Homolka deal. The Ontario government, faced with protests and petitions over the deal, ordered the inquiry in late 1995.
"There is a profound and widely felt sense of unease at the fact that Karla Homolka was sentenced to serve only 12 years for her part in the most despicable crimes which I have seen in over 40 years of working in the criminal courts of this province," says his report.
"We all know that had the videotapes been available to the authorities on May 14, 1993, the Crown would never have made this resolution agreement with Karla Homolka."
But that wasn't the case, according to the people who hammered out the deal.
Michael Code said so at the time. He was assistant deputy attorney-general and head of the "management committee" that directed negotiations with Homolka's lawyer George Walker.
In May 1995, Code wrote a memo in which he says the videos would have made little difference to the outcome. Homolka co-operated with police, telling them about the existence of the videos and describing their contents. Had they been found earlier, wrote Code, "instead of 12 years, the sentence might have been 14 or 15 years."
Code, now in private practice, says "We needed Homolka. We didn't have enough evidence to get the bad guy without her."
Walker, too, argues that finding the tapes earlier wouldn't have made a difference. In a recent interview with CTV, he said she was forthright about the videos.
He says that he and Crown prosecutor Murray Segal (who then reported to Code) "walked away thinking we had a fair deal and given her cooperation subsequent, given the difficulties that the Crown had in presenting its case, given the background, I would think what we both thought was a fair deal then, we would still think is a fair deal today ... In spite of the tapes, the Crown needed her."
Homolka led police to at least two critical pieces of evidence - proof that Bernardo returned leftover ready-mix cement used for entombing Leslie Mahaffy to the hardware store and traces of vomit in a carpet that matched French's DNA and contained Bernardo's semen.
Author Stephen Williams, who has written two books about the case, says that it is in the government's interest to perpetrate the myth of the videotapes.
"It confuses the public and takes the onus off the ministry of the attorney-general for making the deal with Homolka" he says. "But it is absolute and utter bull."
Most people believe there was only one "deal with the devil."
That may be technically correct in terms of Homolka's essential plea bargain in May 1993 but, in truth, there were two. A second pivotal decision by Code's team on May 18, 1995 essentially gave Homolka the blanket immunity she sought from the outset. It was made on the eve of Bernardo's trial, with Homolka slated to be star witness for the prosecution.
Her 1993 plea bargain stipulated that authorities would not protect her from prosecution if she lied or left herself open to charges of "obstructing justice, public mischief, fabricating evidence, perjury, inconsistent statements and/or false affidavits."
But that's what she did, says Osgoode Hall law professor Alan Young. In a 1996 memo to Galligan, obtained this week by the Star, Young argued that Homolka "perpetrated a fraud by hiding the full extent of her criminal wrongdoing." He says she withheld evidence on the Mahaffy/French murders and covered up details of the rapes of Jane Doe. The videotapes showed the girl being sexually assaulted by the couple on two separate occasions.
Homolka apparently "forgot" about Jane Doe. It came back to her in a dream. On Oct. 6, 1993, she wrote Walker "I'm having a major problem. Paul raped Jane, a friend of mine. I don't remember much of it ... I have to tell them but what if they nail me for this too?"
She recalled more about Jane Doe to an array of psychiatrists, as well as to prosecutors, over the next months. Code's management committee deliberated about whether she was protected from being charged by the terms of the 1993 pact.
Code didn't think she was. He told Williams (in Karla, A Pact with the Devil) that it was "a horrendous, totally unjustified attack, especially when you consider that she had to have known how dangerous (Halothane) was, given that she had killed her sister six months earlier in exactly the same way."
Still, he believed that amnesia prevented her from disclosing the rapes earlier. Moreover, it wasn't in the public interest to prosecute her. Without Homolka, Code wrote at the time, they wouldn't have gotten Bernardo.
Last week, Code told the Toronto Star "We had five senior crown officials with 120 to 130 years of experience among us. Everyone says it was the most difficult decision of their career. There was incredible conflict and you weigh the pros and cons. (The prevailing view was that) these are the most horrific crimes in the history of southern Ontario and we can't afford to make a mistake on whether he gets convicted or not."
Young argues that the Crown "decided to whitewash the accomplice."
They didn't want any charges hanging over her head. They portrayed her as a battered wife, a victim of post-traumatic stress and a sufferer of memory loss.
She simply had not remembered Jane Doe.
Young remains skeptical. "She has a dream and it starts to come back. The first thing she does is write her lawyer asking for immunity because she's afraid she would be 'nailed' for this disclosure," he says. "She's protecting her ass. Is this an amnesia victim or a manipulative person?"
Young wrote in his 1996 legal opinion that the Crown acted "imprudently" to strike a deal because the Green Ribbon Task Force, a joint police operation on the rapes and murders, arrested Bernardo and charged him for the murders before they had a solid case.
"The deal struck was an act of desperation fuelled by the press release of the police indicating that they had caught the murderer," Young wrote.
The pell-mell sense of haste was clear. Author Williams says that Walker told him "he really didn't do anything to initiate the deal for his client except get out of his La-Z-Boy and answer his door on the night of Feb. 11, 1993."
His visitors were officers from the Green Ribbon Task Force, who were quick to suggest there might be an amenable climate for a deal.
Within days, its first tenets were being locked into place and events were soon swept along by momentum.
At the heart of the story are the missing videotapes. For they were discovered - just not by the right person.
After Bernardo was arrested, Niagara Region Police searched his house and failed to find them. Months later, Bernardo's lawyer Ken Murray visited the house, reached his arm up under the pot light and found them.
Murray didn't disclose the existence of the tapes, even keeping them secret until after he asked Toronto criminal lawyer John Rosen to take over Bernardo's defence in August 1994.
It was Murray who, during Homolka's trial in 1993, said the Crown "may well find they made a deal with the devil."
Rosen, known as "Mr. Murder" for his trial experience, went on to defend Bernardo in court, getting the chance to question the Crown's star witness. In his summation, he spun around and told the jury "She is no victim."
On the fate of Homolka, Rosen is philosophical.
"The way I see it," says Rosen, "is that it's all water under the bridge. She got the sentence she got."'Is this an amnesia victim or a manipulative person?'
Alan Young, Osgoode Hall law professor
Illustration:
• Karla Homolka enjoys a glass of champagne at the house in Port Dalhousie, a suburb of St. Catharines, where teenagers Kristen French and Leslie Mahaffy were assaulted and killed. A self-portrait taken by Karla's sister, Tammy Lyn Homolka in July 1988. Her death four years later was ruled accidental at the time. A self-portrait taken by Karla's sister, Tammy Lyn Homolka in July 1988. Her death four years later was ruled accidental at the time.
Edition: ONT
Length: 1934 words
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