“Does someone else have to die before we get the gun back?” says Kavanagh. “Let’s get it off the street, Mark.”
Smich tells Sachak that he told Kavanagh he was given legal advice not to talk, but that part of the video isn’t being shown.
Sachak is puzzled that Smich can’t remember anything at all about where he buried the gun. “Let’s just break it down step by step so the jury can really understand this shock you’re suffering from.”
Smich says the gun was hidden in the washing machine in the garage at his mother’s house.
“The house of your mother recovering from cancer?” asks Sachak. He reminds the jury that Smich had recently told them that “family means everything.”
“She had recovered already.”
“Oh, so she was cancer free when you put the gun in the washing machine?”
Smich, who has a tendency to ramble, tries to explain about his mother’s diagnosis, but Sachak cuts him off to ask what he did with the gun once he retrieved it from the washing machine.
Smich says he wrapped it in tape.
“I don’t get it. Why do you wrap the gun with tape? Why do you do that?”
“Um, I wasn’t thinking completely,” says Smich. “I don’t know.”
No matter how much he prods, Sachak can’t get Smich to explain his reason for taping the gun. In mock frustration, Sachak moves on to asking him how he buried the weapon.
Smich says he used a gardening tool.
“What gardening tool?”
“Like a spade, I think they call it.”
“I live in a condo in a congested city. What’s the average length of a spade?”
Smich looks confused.
“Use your hands and describe it for the jury.”
Smich doesn’t react, so Sachak says he will move his hands apart gradually and Smich can tell him when to stop.
“My hands are fully extended,” says Sachak.
“I don’t know,” says Smich, looking blank.
Eventually, after much questioning, Sachak gets Smich to remember putting the taped gun into a shopping bag. Then Sachak broaches the topic of how he got to the forest on his bike, if he carried the spade in his hand or in the bag. “Did you tape it to your head?” he asks sarcastically.
“That would be highly unlikely, but it could be possible.”
“Presumably, you have a bag with a gun in your hand?”
“I wouldn’t agree with that. I don’t know.”
“Then give us a likely scenario….As you’re cycling to the forest, where’s the bag with the gun?”
“I don’t recall,” says Smich. “I couldn’t sell the gun. Everyone’s telling me, Get rid of all the stuff. Brendan Daly told me to bury it.”
Sachak makes a show of looking at his watch and shaking his head. He asks Smich which way he turned when he cycled off from his mother’s house. Smich says he doesn’t recall.
“You know the roads, some of the ravines, landmarks where there’s a Mac’s Milk, Becker’s, Costco,” says Sachak, trying to jog his memory.
“I don’t recall, sir,” says Smich. “Those other times we just went over, I was never in that state of shock in my life, so that day was completely different. So that’s why I don’t recall.”
“So the jury gets the full picture,” says Sachak, alluding to the promise Dungey made in his opening remarks, “you’re saying, that night, you have no idea what road you took, no idea what landmarks you may have cycled past…not the slightest recollection which forest you cycled to.”
“That’s correct,” says Smich.
Sachak asks how it was possible to cycle in the dark forest on the BMX bike Smich claimed he was riding.
“I don’t recall.”
“Did you see any wildlife in this forest? Bears? Deer? How deep in the ground did you dig? How long were you digging?”
Smich can’t remember anything, except for some reason he thinks the hole he dug would have been relatively small.
“Is this gun-burial-induced amnesia? You seem to have forgotten every detail except that it’s a magical forest.”
As Smich tells Millard’s lawyer that he can’t remember due to being in a state of shock, stress, and paranoia—three words he keeps repeating—Sachak leans on his lectern and looks at the jury in disbelief.
“Were you concerned about little kids, that they may pick up this gun and it may go off?” Sachak asks.
“Well, I buried it somewhere no one will find it.”
The discussion drags on, with lawyer and witness increasingly antagonizing each other. By the end, only the truly gullible could believe Mark Smich’s gun burial story.
But strangely, on the internet there was a rising tide of anger at Sachak for discrediting Smich. Sachak’s quirky style and snarky questions didn’t always translate well on Twitter. As much as lines about bears and taping a spade to one’s head can work in the courtroom, where it’s clear that Sachak is responding to the ridiculousness of what Smich has just told him, his remarks may also look childish and pointless in print without context.
In their primal need to pick a side, people all over Facebook and Websleuths were opting for Team Smich, chiming in to say that, memory is fragile, especially in times of stress. They didn’t seem to recognize that while it was necessary to keep in mind the complexities of memory function, it was also critical not to forget the complexities of liars and con men.
—
WHEN MARK SMICH LEFT his mother’s house to go into hiding at his girlfriend’s sister’s apartment, he took along four phones: a BlackBerry, a Samsung slider, a Sony Ericsson, and an LG Chocolate. Sachak says he finds this odd.
Smich explains that all the phones had problems, ranging from a broken tracking ball to a short-lived battery to a screen that kept going white. “What I would do,” he says, “is switch the SIM cards into the different phones.”
“Could you tell me how many SIM cards you possess?” asks Sachak.
Smich doesn’t know.
“Was it more than five, ten?”
“No.”
“Police did not find a SIM card for any of the four phones at Elizabeth’s place,” says Sachak, meaning Marlena Meneses’s sister’s apartment on Speers Road in Oakville. “What happened to the SIM cards?”
“Like I said, they’re probably inside one of the other phones,” says Smich.
“From the four phones seized at 30 Speers, we only have information from the BlackBerry. The other three phones we can’t get any information from, because they don’t have SIM cards,” says Sachak. “Everything’s from Dell’s phone. I haven’t seen much come out of your phones. Can you explain why?”
Smich can’t, but he points out that there was indeed evidence on his BlackBerry. “You and your friend there just used the picture.” He’s referring to Ravin Pillay and another photo of the Walther PPK, which was found on the BlackBerry and shown to the court.
“The point I want to make is that there is not a phone that was active in April or May 2013,” says Sachak. The last text sent or received by the BlackBerry was January 19, 2013, the same day it made its last phone call.
With the exception of a few messages retrieved from the BlackBerry and the device named “Mark’s Ipad,” almost all the text messages exchanged between Millard and Smich that were entered into evidence at trial came from Millard’s phone. Marlena Meneses testified that she believed Smich dumped the phone he was using in May 2013. She never saw it again after Millard’s arrest. Smich told her to call Rogers, the wireless service provider, and cancel the number, which was listed in her name. Smich’s electronic trail was, and remains, covered far better than that of Dellen Millard.
—
AS MUCH AS MARK SMICH’S memory is patchy, even blank, in matters related to phones and the buried gun, there are other events he has no difficulty recalling. He is adamant, for example, that he did not speak to Christina Noudga in the hours after Millard was arrested, even though she provided detailed testim
ony about their conversation. “She texted my phone. After that, Marlena spoke to her,” Smich says. “I told Marlena to call her and say that I’m not around.” Noudga, he insists, was lying.
Smich also says that his friend Brendan Daly is confused about who owned the gun in the toolbox.
Sachak tells him, “Mr. Daly stated that you, Mark Smich, said the gun in the toolbox was yours.”
Smich denies it. Conversations with Daly are a topic where his memory appears to be almost perfect.
“You’re saying you never, ever told Mr. Daly that ‘the gun in the toolbox is mine’?”
“No, never said that, no.”
“Mr. Daly said that you had the bullets for the gun in the toolbox.”
“No, he said something different to each counsel,” says Smich.
This is an inaccurate characterization of Daly’s testimony. On this point Smich is wrong. Even when pushed hard in cross-examination, Daly never wavered from his position that Smich told him he owned the gun in the toolbox. Smich is trying to make Daly, whose evidence was damaging to him, look bad. It is an example of Smich’s cunning, and it is at odds with the image of a lovable loser on the path to reform that he and his lawyer have tried to create.
In one of the most intimidating situations anyone can face—sitting in a witness box under cross-examination for first-degree murder—Smich easily and confidently lobs accusations of lying at his fellow witnesses and former friends. Not only was Brendan Daly wrong, so was Andrew Michalski. Smich says he never asked Michalski to get “the thing,” meaning the toolbox, from Matt Hagerman.
“Just like Daly might be mistaken?” asks Sachak. “It seems like everyone who’s been testifying is lying, right?”
“Over time, people’s memories aren’t that good,” says Smich. He insists he only asked Michalski for the drugs because Meneses wanted them.
Sachak shakes his head at that. “Did you tell Marlena, ‘You’re nuts. This guy killed some guy. Why do we need his weed? What’s so important about the weed?’ Did you tell her that?”
“We just didn’t discuss that. She said to get the drugs, so I called Andrew to get the drugs.”
“Why not tell Marlena, ‘I’m not getting the drugs. I want nothing to do with that guy’? Why not just say that?”
“I don’t know.”
The idea that Smich would have taken directions from Meneses under these circumstances is implausible. Just as Millard exerted a lot of influence over his friends, Smich was the leader of his circle. He instructed Michalski to bring him the toolbox and the drugs. He used his friend Arthur as his unpaid errand boy to fetch the toolbox from the stairwell where Michalski and Hagerman had left it and then to store it at his mother’s house. He pressured Daly to help him sell the gun. Daly and Michalski both testified that they were intimidated by Smich.
Yet for a large segment of people on social media, these facts were overlooked or forgiven as Sachak and Smich battled it out over four full days of cross-examination. For them, Smich had become the underdog fending off Dellen Millard’s big bad counsel. And the social media crowd was about to get even angrier at Sachak when he suggested that clues to Smich’s personality might be found in his rap music and lyrics.
“Why don’t you rap for the jury?” Sachak suggests to Smich as he puts some of his lyrics up on the courtroom screens.
Smich’s lawyer objects, and the judge agrees, saying, “He can read, but I don’t think he has to perform it.” Smich reads his rap lyrics aloud for the court:
Its me muthaphuka, so relentless
Runnin from cops outta them spots, over them fences
Im high so im half fuckin demented
But i still
gotta get away nice and splendid
Got my 9
So im runnin like its nothing…Till im dead, kid!
I am not unstoppable
but I like to live my life without the cops involved
Its not probable, but if it happened to me….Problem solved!
Im just comin for the loot, so shoot first, i come for your new purse, and wallets, I
want some chronics, and that juice cuz ima alcoholic,
No stallin, give it to me in a quick haste, more speedy then fast paced,
Im runnin away from the police in a cash race,
First one, im never last place
The creation date for this particular lyrics file on his iPad is February 16, 2013, while the date for last modification is May 21, 2013, the day before Smich was arrested.
Sachak points out that the Walther PPK has the number nine on its side. Smich argues that it actually says “9 kurz,” kurz being the German word for short. It takes him a while to agree to the obvious, that the number nine is indeed there.
“Thank you, sir, thank you very much,” says Sachak, displaying once again his annoyance at Smich’s evasiveness.
Not surprisingly, the feeling is mutual. When Sachak errs in referring to a date, Smich jumps on it. “Could be one of those brain cramps again,” he says. “You’re probably under a lot of stress.”
It’s another comment that doesn’t fit with Smich’s portrayal of himself as the victim of his powerful friend’s crime, but it provokes laughter in the courtroom and is much remarked upon online.
“Zing,” writes “meterclicks” on Websleuths. “MS is giving Sachak a taste of his own medicine this morning.”
“Oh snap LOL,” writes “Kamille.” “MS should have been a comedian LOL.”
“Interesting. I’m starting to believe that MS is not as dumb as what I first thought,” says “Redheart.”
“Smich is getting sassy,” writes “Katpaws.” “I’m still fully on the fence about MS’s role, but I’m not a fan of Sachak’s style at all…so I can’t help but take a little delight in MS’s quick comebacks. Clearly cleaning himself up has revealed a more clever and quick-witted guy than we initially realized.”
Undeterred by Smich’s retort, Sachak asks what exactly Smich modified on May 21, 2013.
Smich explains instead that adding one letter or a space would cause a file’s modification date to change.
“Tell us what was modified,” says Sachak. “What part was modified on May 21, 2013?”
Smich gives a lengthy account about how Meneses could have used the iPad and caused the modification. He repeats his explanation about inserting a character by mistake, adding that the file could have been opened randomly.
Sachak cuts him off. “I don’t need to know how an iPad works,” he says, looking at the jury. “Just tell me, What did you modify? Please help me. Please answer that question.”
Smich never does.
More rap lyrics go up on the screen.
Never lonely, its just me & my chrome piece, Im holding
The cards i was dealt…Im never folding
The One & Only……SAY10, its no fony……
“ ‘My chrome piece,’ ” says Sachak. “What you’re saying is, ‘My handgun is not a phony.’ That’s what you wrote.”
“Uh, no, that’s not in proper context.”
“Okay, what do you mean by ‘me and my chrome piece I’m holding’?”
“[It] would be a reference to not being lonely because I’d be holding a chrome piece.”
“Let’s call it for what it is. You’re not lonely because you’re holding a handgun,” says Sachak. “Please help the jury out. Who is holding that gun, according to those lyrics?”
“No one’s holding a gun. It’s just lyrics.”
Another set of lyrics is scrutinized.
I am muthaphuka! Get slapped with my gun hand muthaphuka!
Leave you dead, with some contraband muthaphuka!
“You know what the word slapped means on the street,” Sachak tells Smich. “You know for a fact, sir, that ‘slap’ is street slang for murder and kill.”
“Sir, that’s not how it’s written.”
“What did you mean by ‘slap someone with my gun hand muthaphuka’?”
&nb
sp; Smich answers that it’s just lyrics. Sachak asks him again what it means, and they go round and round. Eventually Smich says, “I’m not sure if I even wrote that one.” He thinks Millard may have written it. Hundreds of lyrics were found on Smich’s iPad, and he says he often wrote them with Millard.
“ ‘Leave you dead,’ ” quotes Sachak.
“Like I said, I don’t think I wrote that portion.”
“What do you and Dellen mean by ‘Leave you dead, with some contraband muthaphuka’?”
“What did I mean?”
“Yes, you.”
“I didn’t write it, so I don’t know what he meant by it.”
Sachak plays a thirty-second selfie video of Smich improvising, or freestyling. He’s shirtless and shaven headed with a scraggly moustache and goatee. He appears aggressive and angry as he chants,
Yes, it’s like a freestyle session with no lesson, no question
I’m killing you in possessions. It’s mine
Ima killer, check my design, mountains I climb and throw you off too
Dangle you from the roof true motherfuckers know
I’ll leave you blacked up and blue, bruised
Who’s who? Blues clues
Tell the cops anything and you die on the news.
Peace, bitch. You’re deceased kid
Fuck with me SAY10 the genius
“The rhyme means, I kill you and make what is yours mine,” says Sachak.
“Like I said, it’s just a rhyme,” says Smich. “It all goes together and has nothing to do with reality.”
Dark Ambition Page 27