“I don’t want to testify,” Warren told Judge Nancy Morrison, “I don’t understand why I’m being brought here. Me being here puts my life in jeopardy.”
This was not an idle excuse. The code against ratting was even stronger in prison than it was at his former suburban high school. He was no longer in the presence of wannabe gangsters like Erik and Rich, but instead he shared his days with necrophiliacs and pedophiles and Hell’s Angels and white supremacists. A man who’d literally cut the heart out of his wife lived down the hall. A man who’d doused his daughter in gasoline and watched her burn lived in a cell near his own.
Warren did not tell Nancy Morrison this: the guys inside more or less told him he’d “be taken out” if he committed the transgression of being a Crown witness. “They told me, ‘You’ll be going out of here one way or another, either in an ambulance or a body bag.’”
• • •
Kelly took the stand in her own defense, and her hair was cut in a demure pageboy. She spoke in a voice a little like Dusty s—a little girl’s voice, the voice of Betty Boop or Shirley Temple. Her manner was both aggrieved and bewildered, the manner of someone truly dismayed to find herself in this unfortunate predicament of being on trial for second-degree murder.
“We saw the meteor shower going over us,” Kelly recalled softly, “and we talked.” The night at Shoreline School had begun so innocently on the field and under the falling lights. “We were just mingling,” she said sadly.
Under the bridge, she’d punched Reena only because Reena had tried to hit Josephine. “I was just protecting Josephine,” she said apologetically.
“Reena fell into me, almost knocking me over. I pushed her back into the group, and they continued to beat her. Later we walked up to the Comfort Inn. Everyone was talking about the fight like it was a big rush,” she said, as if disgusted by their callous pride.
“Who was the most aggressive during the fight?” Adrian Brooks asked her, for all the previous witnesses had told the jury she was the main aggressor.
“I believe Dusty was the most aggressive,” Kelly said, primly. “Dusty seemed to be punching her hardest, with the most force.”
She told the jury her version of the murder of Reena Virk:
On the bridge, she’d seen Dusty and Josephine. They told her to leave. She walked away and saw Reena, a girl walking away from her attackers, a girl on the bridge.
“Reena, are you all right?” she had screamed helpfully.
“Fuck off! Leave me alone,” Reena had replied.
She’d wandered about for a bit then. Dusty and Josephine clearly didn’t want her around, and she’d wandered to the Mac’s and used the bathroom, and then she’d wandered to the bus stop and talked to Laila and some friends.
Suddenly, as she was heading home, under the streetlights, she’d heard a boy calling her name.
“Kelly,” Warren Glowatski called, emerging from the darkness, standing alone, just above the Gorge. The boy was smoking and he said he had something “important” to tell her.
He told her this: “We went back after her. We followed her. Josephine and me beat her up some more. Dusty was just watching.”
There was moonlight on the pavement, the red embers of the small boy’s cigarette. The black waters of the Gorge glimmered with the reflection of the moon, below them both.
“Is she okay?” Kelly asked him. “Is Reena okay?”
Warren told her to look down at the black abyss. He told her the girls were still down there with Reena, in the water.
She looked down to the black water.
“I couldn’t see anything,” she told the jury.
Warren walked off then, with only this stern warning: “If Syreeta asks you about the blood on my pants, tell her I beat up a Native guy.”
He left her then. He left her “without even saying good-bye.”
Alone, she’d walked to her father’s house. The night was very dark, and perhaps she was troubled and stressed out by the story of the second beating in the darkness near the old white schoolhouse. Perhaps this was why she’d told Billy, the fireman’s son, that “they beat up a girl and she was put in the water.” She’d gone home and changed into her pajamas, and gone outside to say good-night to her stepmother and Tammy, drinking wine in the warm water of a hot tub. In the morning, she met up with Dusty and Josephine. “We talked about the fight. Josephine thought it was funny. Dusty was bragging.” She didn’t mention Warren’s story “because I didn’t want Warren mad at me.”
And then, at Shoreline, every unpopular girl’s worst nightmare unfolded: she had become the scapegoat, the patsy. Rumors floated and reeked. “They said that I had gone back after Reena, and I was denying all of this. I was saying, ‘No. No. It was not me!’”
Kelly cried for the first time as she recalled the way she was tormented in juvie. “They called me all kinds of names,” she said, while pulling at the sleeves of her sweater. How must that have felt? To be a normal schoolgirl and then to be in prison with heroin addicts and hookers? “Lily told me I was sick. She gave me dirty looks all the time. I said to her, ‘It’s not fair that everyone is blaming me,’” Kelly said, crying at the memory of her persecution.
“Did you kill Reena Virk?” Adrian Brooks asked her.
“No,” she said, shaking her head, rapidly.
“Did you tell anyone you had killed Reena Virk?”
“No!” she said, while her mother wept and the judge looked down at her with what seemed a great and obvious sympathy.
Ruth Picha stood up to cross-examine Kelly. She was not a seasoned prosecutor, and Adrian Brooks would later admit to being quite startled that she, not Prevett, stood up to handle the most important part of a murder trial.
“All these people have come forward and told us that you said you killed Reena. Why would they do that?”
“I don’t know,” Kelly said, genuinely hurt at the long list of accusers.
The judge looked down at Kelly now, as she had looked down at Richie D., Lily, Dusty, and Tara. When the defense lawyers brought up their previous crimes or past lies, she often seemed truly dismayed.
And now, she looked down at Kelly.
Meanwhile, Ruth Pichas listless cross continued. “Well, were they collectively conspiring against you?” she asked, sarcastically.
“I don’t know,” Kelly said primly, as if she was reluctant to speak badly of her former schoolmates.
“Was there anything about you that makes you important to frame in this murder?”
“No,” Kelly said, with the sadness of a true martyr.
• • •
“This case is based entirely on rumor,” Adrian Brooks said, with great conviction, in his closing statement. “The Crown has given you no DNA, no fingerprints, and no bloodied clothing. There is no evidence to put Kelly Ellard at the scene. Rumor plus rumor still equals zero. Zero plus zero still adds up to zero. Ladies and gentlemen, throw this all out. It doesn’t mean anything.”
*
Judge Nancy Morrison cautioned the jury once more: “There are no witnesses who have seen the accused kill Reena.” She asked them to consider the witnesses very carefully. “Was that witness annoying?” “Did they have their own motive?” “Did some have their own agendas?”
Before finding Kelly Ellard guilty, she cautioned from her perch above, “Be sure. Be very sure.”
• • •
The jury began deliberating Wednesday at 11:45 and returned with a verdict on Friday at precisely 4:00.
“She’s going to walk,” a feminist advocate monitoring the trial whispered, bitterly.
“It’s April Fools day in India,” her friend replied, with pessimism.
She’s going to walk, the youth of View Royal predicted as they waited by their TVs. At Brady’s Fish and Chips, Syreeta told Diana, “I always told you they wanted Kelly to walk and Warren to fry.”
Rushing into the courtroom, Mark Jette and Adrian Brooks buttoned their cuffs and straightened their
white collars. Derrill Prevett’s gown was ripped under the arm. Judge Nancy Morrison looked deeply pained. Kelly’s father chewed his lip, and the veins on his neck were livid and engorged. Six sheriffs entered the courtroom and lined the doorway, warily, like some nervous cavalry.
The words, when announced, seemed to hover in the air and not resonate as truth for several seconds. Everyone in the courtroom seemed held by disbelief.
“Guilty.”
Nevada let out a loud shriek, while Kelly herself gasped.
A chorus of the word rose from outside the courtroom as twenty reporters simultaneously announced the verdict to their editors and producers. “Guilty! Guilty! Guilty! Guilty! She’s guilty! It’s guilty! Guilty!”
Kelly’s mother remained in her seat, pale and broken and weeping.
Mukand tried to call his daughter, Suman, but he was not sure how to use the cell phone a stranger had lent him.
Kelly’s mother remained still and sobbing, and Reena’s grandmother, noticing this, walked over to her slowly and held her hand to the crying woman’s heart.
*
On April 20, 2000, Kelly returned to the courtroom to face Judge Nancy Morrison. She now wore a blue sweatshirt with the name of her prison emblazoned across the back. Her hair was lank, and a certain heaviness caused her every feature to look protuberant.
The newspapers had nicknamed her “Killer Kelly.” The boys in her prison mocked her with this catchy adage.
On this day, Honorable Madame Justice Morrison would set “how many years Kelly Ellard must serve in prison before she is eligible for parole.” She noted that “if the decision depended only on the brutal murder of Reena Virk … then a decision would be a very easy one: seven years.” The minimum was five years.
Judge Morrison stated her intent to “take other factors into consideration as well.” She must, she said, “view the accused as an individual and look carefully at her age and her character.” She noted “Kelly Ellard has an extraordinary network of family and friends, a large and loving close extended family.”
“She has a way with the elderly and with children. There is a lack of racism in her makeup. She no longer associates with her former peers, and there is no suggestion that she is attempting to reunite with those persons…. She’s making a commitment to better herself. She’s achieved good marks. She’s spoken and demonstrated remorse for this terrible event. There is no history or signs of violence before this event or after. She has always had and remains having an overwhelming love of animals, gentle and caring with them.”
She then sentenced the “fifteen-year-old with no record, and an otherwise good character” to “the lower number of five years.”
The judge looked directly at the young girl. “Kelly, you are young, intelligent, and you have a wonderful family. They believe in you, and I can only say that you must never let them down and, more importantly, you must never let yourself down again. I think you owe it to Reena Virk to live a life that is exemplary. And now you owe that to yourself.” Her last words were a wish.
“I hope you do well.”
Another Chance
KELLY IN A LOW-CUT red top revealing the curve of her breasts, Kelly being chased, Kelly, Kelly, Kelly! Kelly, with the cameras all about her. A stranger might have thought she was a movie star, for the cameraman chased her and the man with the microphone called her name. Kelly was in the parking lot, rushing toward her mother’s car. Flashes and screams. “Kelly! Killer Kelly!” The look on her face could only be described as “tremendously pissed off.”
Why she wore such a furious look, one could not be sure. Perhaps the chase of the adults bothered her, for they moved so close to her body and their name-calling was so hostile. But, surely, she should have been happy, for on this day, February 4, 2003, Kelly Ellard was freed. The verdict of guilty might never have been uttered. She would have a new trial. She would have another chance.
Kelly had been freed once before. Sixteen months before. Almost immediately after her verdict of guilty, Mark Jette announced he would be filing an appeal, and a judge, saying, “Ms. Ellard poses no threat to society,” allowed Kelly to go back home to View Royal and live under house arrest until the Supreme Court reached a decision on whether she would receive a new trial. Kelly’s family provided a $50,000 surety. Her father mortgaged his home in View Royal.
“I think it’s a gross injustice to allow her to go home,” Suman Virk said. “We’ve got Glowatski’s testimony that Kelly committed the murder and she gets all the breaks. It’s really unfair. Its also unfair to the young people who testified at Kelly Ellard’s trial. The message is that if you have money and get a good lawyer, you get all the good breaks.”
Marissa and Tara were working behind the counter at New York Fries in the mall when they saw Kelly. The mall was alight with Christmas decorations, and past the beaming Santas and cavorting reindeers, the two girls spotted Kelly wandering about with her mother. An emotion close to panic was followed by a dark and volatile outrage.
“How can that be?” Tara wondered. “How can she be walking around a mall? It made me feel that everything I testified to in court, and giving a police statement, was a waste of time because this girl is walking around Christmas shopping. Me and Marissa were freaking out. I went and told the security ladies. I told them, ‘This girl is here!’ And then I felt something on my back. It was Kelly. She bumped into me. I couldn’t see her. I just felt this person bumping against my back, and when I turned around, she was walking away.”
• • •
Mark Jette spent “many, many” hours on the Factum, the document of appeal. Warren too had tried for an appeal of his conviction, which had been dismissed in 2001. Kelly’s appeal was presented before three judges, named Lambert, Rowles, and Donald. Kelly sat in the witness box, seemingly oblivious to or disinterested in Mark Jetté’s complex and comprehensive attempt to save her and set her free.
Of the presentation before the Honorable Three, Mark Jette would write:
The appeal went ahead and the court reserved judgment. They are particularly interested in our argument that Ruth’s cross-examination of Kelly was improper, unfair, and deprived her of a fair trial. It would seem that this is the only ground of appeal which has caught their interest. The Crown has conceded that this was improper cross-examination, but argues that the Judge’s charge to the jury cured the problem, a kind of “no harm, no foul” pitch. This is a close call, but we are definitely in the ballpark, and may succeed in getting her a new trial.
• • •
Judge Donald stood and read his reasons for ordering a new trial: “The Crown’s questioning of Kelly Marie Ellard was unfair and improper, in particular the questions like: ‘What reason would these people have to frame you?’ Such questions could induce a jury to analyze the case on the reasoning that if an accused cannot say why a witness would give false evidence against her, the witness’s testimony may be true. The risk of such a course of reasoning undermines the presumption of innocence and the doctrine of reasonable doubt.”
Interesting was the subtle denunciation of the youth of View Royal evident in the judge’s statement. “The milieu in which the Crown witnesses moved, and the influences, peer and otherwise, may have affected their testimony.”
“There is no doubt,” Justice Donald wrote, “that most of the witnesses were exposed to rumor, gossip, and news reports surrounding the disappearance and the homicide of the victim.”
The “significant media attention” would be another reason the highest Court ruled in Kelly’s favor. “The revulsion of community to the circumstances of the crime was palpable. It was therefore incumbent on the Crown to proceed with special care that the appellant receive a fair trial. Unfortunately, the cross-examination by the Crown on the question of motive crossed the line. The Crown’s tactic makes a new trial necessary. For these reasons, I would set aside the guilty verdict and order a new trial.”
Kelly, brought to Vancouver and held in a cell in the bowel
s of the courthouse, learned of the decision from Mark Jetté. “She wasn’t very excited,” he observed, thinking she must be “stunned. She’s shut down.”
That evening, a journalist who’d attended all the trials recounted Kelly’s apparel to a friend: “She had on this horrible outfit. This red top, it was like lingerie. It showed her entire cleavage. Her breasts were just hanging out. She’s got dyed black hair now. She’s way bigger than she was at her trial. She’s taller. I couldn’t get over that top! It was so low-cut. You couldn’t take your eyes off her breasts. She plunks in her car. She tells her mom, ‘Let’s get the fuck out of here!’ That top she had on, it was all satiny and shimmery. It was so extremely low-cut. She was walking so fast; she was bouncing. She was really mean looking, she just kept glaring at us all, with her dead eyes.”
In View Royal, Tara watched the constant footage of Kelly’s walk to her parents’ car. The improperness of the outfit did not arouse her wrath. She was upset far more by the decision of the Honorable: “I flipped! I was right pissed off,” she recalls. “My first reaction was, ‘Great. We’ve got to go through another trial again.’ I had thought her first trial was the final chapter for us. And then, to know she’s getting another chance….”
• • •
Warren received the news, well Warren saw the news, while in Ferndale Institution, a minimum security prison he’d been transferred to in 2003. It was not easy to get into this prison, the Harvard of prisons in a sense—one needed an immaculate record and numerous recommendations and an exhibited degree of responsibility and good intentions.
Under the Bridge Page 30