The Bulldog and the Helix

by Shayne Morrow

  Opening for the Crown, David Kidd set out the circumstances of the crime and explained that the case would hinge on DNA evidence linking Patten to the crime scene. He told the jury that the evidence would demonstrate that Jessica suffered injuries consistent with a sexual assault and that the DNA profile extracted from semen collected at the crime scene was a direct match to the accused. Kidd also advised that he would, during the course of the trial, present a video recording in which the accused made a full and detailed confession to the killing.

  “The Crown is confident you will find, beyond any reasonable shadow of doubt, that Mr. Patten is responsible in law for the first-degree murder of Jessica States,” Kidd concluded.

  Darrill Prevett, the lead Crown counsel, advised that he expected to call about fifteen witnesses during the course of the trial. He explained that the case would include a significant DNA component, but that with a number of successful DNA prosecutions now on record, prosecutors had by now learned how to present the highly technical evidence. “We don’t try to turn juries into scientists,” he said. “But I think most jurors by now have a general understanding of the concept.”

  Patten, hair now cropped short, wore a new suit as he sat behind Plexiglas in the prisoner’s dock. States family members and supporters were seated immediately behind the accused. Dianne States, who was scheduled to testify, was not present.

  But Heller, the new defence lawyer, threw the whole courtroom for a loop when he announced during opening arguments that his client was indeed guilty of raping and killing Jessica States. At the time of the crime, however, he was too stoned on LSD to form the intent to kill. “Try to put aside the passions which are aroused by the death of Miss States,” he urged the jury. Yes, Heller said, his client was a street criminal. “He was in the business of selling LSD. He was a punk, living an undirected life.” During a meeting with friends that day, “in a ridiculous macho gesture,” Patten took a huge amount of the drug. “He lost the ability to appreciate the quality of his actions,” Heller told court. “He awoke to this nightmare too, along with the rest of Port Alberni.”

  At this point, Thackray interjected to ask whether Heller intended to argue for a lesser charge of second-degree murder. Heller replied that it was a clear case of first-degree murder or manslaughter—nothing in between. “I’m not asking you to let this man go free,” he said. “What we have here is not a murder but a manslaughter.”

  One of those caught by surprise was Dan Smith. “The first I heard of this was at trial. He certainly didn’t raise any drug issues during his confession,” he said.

  WHEN THACKRAY CALLED a break, I raced down the hallway to the payphones and called my office collect. I had scrawled out the highlights of the trial thus far, focussing on the sensational tactic introduced by the defence, and dictated them to the production department. Production in turn handed my rough version to the newsroom, where a colleague put together my summation of opening arguments with some boilerplate. Under the headline, “Accused Killer Blaming Bad Acid Trip,” the story hit the Canadian Press newswire as expected. By this time, Times reporter Karen Beck was managing editor. She had reserved a block of space at the top right corner on the front page.

  Also on page one, beneath the Jessica States trial story, was an account of the execution of Timothy McVeigh, the domestic terrorist who was convicted of killing 168 people in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995. It was a reminder that Canada had long since abolished capital punishment and that, even if convicted and given the maximum sentence, Patten could conceivably become a free man in his early thirties.

  THE FIRST CROWN witness to take the stand was Corporal Harold Vousden, who had served as the identification officer on July 31, 1996, when Jessica went missing. Prevett led him through the time sequence of his arrival at the crime scene and his subsequent departure.

  Using crime scene photographs, Vousden described how he first saw the body, covered in bark and forest mulch, well off the main path beneath the bushes in Dry Creek Park. In cross-examination, Heller asked the witness to clarify the terrain. Vousden responded to each question in a flat, measured voice. The death scene was clearly off the main path, in thick brush, he explained.

  “All right. I think I finally understand,” Heller said. He then asked if the death scene was “exactly as it was found” by search and rescue volunteers.

  “I don’t know how the body was found by the rescue team—that’s how it was found by me,” Vousden responded, in the same flat voice. “I understand there was some disturbance of the scene by search and rescue, but I didn’t talk to them about how.”

  After Vousden, Dianne States took the stand. Her voice cracking with emotion, she described the hasty search that took place when Jessica failed to come home from the ballgame on the night of her death. The family contacted police at 11:15 PM. Heller did not cross-examine Dianne States.

  Shannon Charlesworth was a volunteer at the ballpark on the night of the crime. David Kidd led her through her observations about that evening. At about 9:15 PM, Charlesworth testified, she saw “Jessie” sitting with “a young male” at a picnic table across the street for the park.

  “Did you get a good look at the male at the table with Jessica?” Kidd asked.

  “No, he just looked like a regular kid—about fourteen to fifteen years old, kind of hunched over.” On further questioning, she added, “He looked partly Native—sort of dark.” What colour hair? “Black.”

  In his cross-examination, Heller attempted to establish that Charlesworth hadn’t paid any particular attention to Jessica States that night. But the witness was adamant: she had distinctly seen Jessica on three separate occasions during the evening. “The boy in question—did he do anything to raise your suspicions? Was he looking around furtively?” Heller demanded. No, Charlesworth said, noting that she could not positively identify the boy at the table as Roddy Patten.

  Following Charlesworth, the groundskeeper of Recreation Park, Don Barkley, testified that he had found a mountain bike at the picnic table and put it into a storage room. It was not until late the next morning that he realized it belonged to the missing child and that the RCMP helicopter had been searching for it since the beginning of his shift.

  Then Alberni Valley Rescue member Stephen Adams described how he had found Jessica’s lifeless body when he flipped over a piece of freshly peeled bark as he climbed over a log. On questioning by Kidd, Adams established that the body had been carefully and deliberately concealed under a mound of bark and forest debris. Kidd intended to establish beyond a reasonable doubt that this was not a hasty, spontaneous act by a confused killer.

  “If I hadn’t moved the bark, I would have walked past it completely,’” Adams testified. With the use of crime scene photographs, Adams identified individual pieces of bark that had been stripped from a nearby tree and placed strategically to cover the girl’s battered body.

  When a friend of the States family, Corey Porter, took the stand, Kidd led him through his activities on the night Jessica went missing and the following day. “Your honour, I’m having trouble understanding the relevance of this,” Heller interjected. Kidd then established that Porter had been called in to identify the body. (By coincidence, Porter was one of the two visitors who had visited Gurmit Dhillon’s father at Alberni Foundry on the evening of April 14, 1977, the night Carolyn Lee was abducted.)

  With half an hour left on the clock, Kidd advised the court that he had no further witnesses on hand. “Things are going quickly. And that’s good,” Thackray observed after the jury was dismissed for the day. It was at this point that Heller advised the judge that, because of the speed of the proceedings, he would likely have a scheduling conflict with his expert witness, a toxicologist named Dr. Paul Cooper, who would testify on the debilitating effects of LSD.

  “Frankly, I’m in trouble, time-wise,” Heller said, explaining that Cooper was scheduled to testify in a pair of trials in Toronto an
d might not be available until June 25. He asked for a one-week adjournment to follow the completion of the Crown’s case. In response, Thackray said he would be “very resistant” to allowing an adjournment, in light of the fact that the trial had already been delayed five months because Patten had hired a new defence counsel.

  “If Mr. Cooper has reasons he cannot be here—that he has commitments somewhere else—he’d better give us that in writing, or he’d better be here himself,” Thackray concluded.

  Now, with the luxury of time and extensive notes, I sat down and composed a lengthy account of the trial thus far, then emailed it to the office. The story appeared in the June 12 edition of the Times, under the headline, “Patten Trial Rushes Headlong to Conviction: Manslaughter or First-Degree Murder the Only Question Left.” That would serve as the main story, while I would be able to dictate another handwritten account of the next morning’s proceedings to run separately.

  THE NEXT MORNING, I arrived at the courthouse in righteous anger. On Monday morning, a news photographer had captured an emotionally stricken Dianne States clinging to her husband at the entrance to the courthouse, and it was now on the front page. On Tuesday, at the entrance to the courthouse, I recognized the man who had taken the devastating shot and headed his way. I think I planned to say something like, “That’s not the way we do it in Port Alberni.”

  But the photographer stopped me short. Immediately, I could tell he was equally upset. He mumbled something like, “I know what you’re going to say. I feel like hell.” We left it at that. In hindsight, it was an excellent news shot that reflected the emotional stakes in the case. But the offending photographer had by now been swept up in that communal feeling that this case was somehow different.

  First to take the stand that morning was the original exhibit manager, Serge Cashulette. In a subdued, measured tone, he described the crime scene and recounted the series of numbered exhibits collected at the crime scene, and later, at autopsy. The most significant was the 375-millilitre Meagher’s apricot brandy bottle found next to Jessica’s lifeless body. Cashulette made no comment, merely holding up the bottle, contained in a plastic evidence bag, for the benefit of the jury.

  Shelley Arnfield said that Crown counsels Prevett and Kidd had to adjust their approach as the result of Heller’s surprise admission of his client’s guilt. “I never testified because he admitted it,” she said. “So the trial was, in effect, about [Patten’s] mental competency; was it murder or manslaughter? They weren’t disputing that he was the [guilty] party.” That meant, rather than focussing on guilt, Kidd and Prevett would have to convince the jury that this was not the act of a man incapable of forming the intent to commit murder, because he was “wrecked out of his tree.”

  “And yet,” Arnfield said, “‘I’m not so wrecked out of my tree that I pull all this bark off a tree and cover her so she looks like part of the woodland floor.’ That’s why Serge was testifying—to paint the picture of the deliberateness of the scene where she was found. If you’re wrecked out of your tree, you walk away.”

  Following Cashulette, the forensic pathologist, Dr. Laurel Gray, who performed the autopsy, testified to the extent of Jessica States’s injuries and the exact manner of her death. She explained the significance of the bagged exhibit Cashulette had held up. My morning brief focussed on Gray’s testimony. I wrote: “Jessica States died as a result of massive injuries to the face and head which were probably inflicted with a small liquor bottle according to a forensic pathologist who testified this morning in the murder trial of Roderick Patten.”

  According to Gray, Jessica suffered three separate traumas during the assault, any of which would have been fatal in its own right. The first blows from the bottle caused brain swelling, which would have led to death, Gray testified. But the overkill continued. Gray testified that the assailant had stuffed dirt, bark, and forest mulch into the struggling girl’s mouth, sufficient to cause death by asphyxiation. Finally, Patten had jammed a pointed object, likely a sharp stick, into her head, causing a penetrating wound of the brain, equally lethal.

  Prevett asked the pathologist if there was any sign of strangulation. Gray said there was no sign of manual strangulation, but there was significant bruising consistent with pressure on the neck. Based on the amount of swelling, Gray concluded that Jessica might have lived from fifteen to thirty minutes following the attack. (Coincidentally, that echoed the pathologist’s finding in the death of Carolyn Lee, twenty-four years earlier.)

  In his cross-examination, Heller repeatedly attempted to establish that, in a drug-fuelled frenzy, his client was working over a lifeless target, following the initial blows to the head. Gray repeatedly maintained that the unconscious brain-damaged victim would make involuntary movements that could be interpreted as consciousness. “Are you sure you are not just speculating?” Heller demanded.

  At this point, Thackray interjected. “I don’t know how many times you want to ask the doctor that question, Mr. Heller,” he observed, but Heller continued to press. He questioned the blows that Gray had testified were probably caused with the bottle. “Could they not have been inflicted by repeated blows with a fist?” he asked.

  “The shape of the injury led me to conclude that it was not made with a fist,” Gray replied. On further questioning, Gray said it was likely that the assailant struck the victim between twenty and thirty times.

  “So it is likely that the girl was pummelled while she was unconscious and simply lying on the ground?” Heller continued. “The secondary blows . . . they weren’t inflicted to stop her from getting up?”

  “I think that’s going a bit far,” Thackray interjected. Thus admonished, Heller wrapped up with a few questions about specific bruising and the nature of the plant and soil material found in the body.

  The day concluded with a one-hour video deposition from a forensic odontologist, Dr. David Sweet, who had been called in to examine what was believed to be a bite-mark on Jessica’s body. In his presentation, Sweet delivered a primer on forensic odontology, followed by a description of the five categories of bite-marks. Based on his examination, Sweet concluded that the “suck-wound” on the victim’s chest was of minimal forensic significance. In short, there were no tooth-marks that could identify an assailant.

  After the jury was dismissed, Thackray announced that he was forced to comply with the request for an adjournment in the name of allowing a reasonable defence. The jury had not been sequestered.

  “Well, we don’t want to allow an appeal, do we?” Kidd observed. “You just hope the jury won’t forget about the evidence.”

  Dan Smith was scheduled to testify on the third day of the trial to present the DNA evidence and to introduce the videotaped confession. Kidd said the testimony would be brief and to the point. “It shouldn’t go on too long, because [guilt] isn’t being contested—he [Heller] isn’t contesting the evidence.” Of Smith’s testimony and the videotaped confession, he added, “Tomorrow is the proof of the pudding.”

  THE NEXT DAY, the court heard Smith’s DNA evidence and saw the videotaped confession, which painted a gruesome picture of the scene. Hiron Poon said he and the Crown prosecution team had prepared extensively for the sort of challenge Russ Chamberlain had initiated three years earlier in the Lee trial. “I did testify at the preliminary hearing and at trial, but I don’t think the defence made a big fuss about [DNA] in the end because there was so much forensic evidence,” he told the author.

  With Patten’s guilt a given, it was the confession video that spoke most vividly to his state of mind at the time of the killing. “I had sex with her,” the jury heard Patten admit. “She didn’t say ‘No’ or ‘Stop.’ I never gave her a chance to. I was so scared. It had already started. So scared. I hit her.” During the confession, the jury also heard Patten admit to stabbing Jessica in the head with a stick when she wouldn’t stop moving. The Crown’s hope was that the gruesome admissions would remain vivid in the minds of the jury while they waited for the defenc
e’s expert witness to become available.

  Near the end of the tape, Smith asked if the accused would like to say anything to Jessica’s parents.

  “Tell them I’m sorry. I’m so, so sorry. I wish I could go back. I see her picture all over the place,” he said. “I’ve already taken one life, but I can’t even take my own. I didn’t mean to wreck her life. I didn’t mean to wreck anybody’s. Sick.”

  Notably absent was any reference to massive drug consumption, as contended by the defence. When Patten later took the stand in his own defence, he would describe a horrifying, hallucinatory nightmare very much at odds with his portrayal of the scene for Dan Smith and the interview team.

  Smith said while his own testimony was “very difficult,” the evidence was much clearer than in the Dhillon trial, and the cross-examination much less acrimonious. “I was much more confident this time around that we had done everything correctly. I had some concerns that there were investigation techniques that we ought to have used, but the evidence we had, I thought, was pretty bulletproof.” Judge Thackray later commended the team on the quality of the investigation. “I took some comfort from that because I certainly never got those comments during the Dhillon matter.”

  WITH THAT, THE trial adjourned until June 25, when the defence’s expert witness, Dr. Paul Cooper, was expected to be available. Shelley Arnfield said Dr. Cooper’s unavailability came as a surprise to both sides, including Heller. Having staked his client’s entire defence on drug-induced diminished capacity, his expert witness could now not be depended on. “Nobody knew that until Heller got up in court and said, ‘I’ve got a problem. My drug expert is not available . . . I spoke with Dr. Cooper before court this morning . . . as he was getting ready to board the plane for Ontario,’ Heller told the judge. ‘I reconfirmed his schedule with him, told him what Your Lordship said with respect to him staying in touch with me. As soon as he gets to Ontario, if there’s any change, if anything folds, if there’s a resolution earlier to any of those matters, he promised to me—promised me that if that were to happen—first of all, he’s going to contact me, early next week.’”