The Supreme Court of Canada reserved judgment on serial killer Robert Pickton's bid for a new murder trial today, minutes after hearing B.C prosecutors concede that their colleagues dropped the ball at Mr. Pickton's trial.
They said that it was wrong for the Crown to have agreed to jurors being told that the B.C. pig farmer could only be convicted of murdering six sex trade workers if he was the actual trigger man.
"The Crown was simply wrong in the context of this case to take that position," prosecutor Gregory Fitch said. "There was no strategic advantage, and it made proof of our case more difficult. The Crown made an error."
However, Mr. Fitch argued that the blunder did not change the fact that Mr. Pickton is overwhelmingly guilty of playing a lead role in the killings, and that it would be a travesty for the Court to order a new trial.
The Court appeared divided over the gravity of the flaws in the trial. Some judges suggested that the defence was seriously misled, while others wondered aloud whether any genuine harm was caused.
"Given the staggering amount of evidence in this case... where is the prejudice or miscarriage of justice that would justify overturning it?" Madam Justice Rosalie Abella interjected.
The startling concession by the B.C Crown came along with a plea for the Court to logically evaluate the entire case against Mr. Pickton.
"He is the one constant in the execution of this scheme," Mr. Fitch said. "His thumb print is on every step."
Mr. Fitch said that Mr. Pickton boasted to friends that he was "the head honcho" of the killings and that he had been stopped just one killing of his goal of 50 murders.
Launching oral arguments in an attempt to overturn Mr. Pickton's convictions, defence counsel Gil McKinnon told the Court that the move was vastly unfair to Mr. Pickton, whose entire defence had been predicated on responding to the Crown's theory that he acted alone in killing six sex-trade workers.
The change came after B.C. Supreme Court Judge James Williams received a question from the jury asking whether it could convict Mr. Pickton even if he was aided by other perpetrators.
"The question struck at the chord of the prosection's case," Mr. McKinnon said.
He said that defence counsel at the trial "vehemently opposed" the trial judge's intention to tell the jury that it could find Mr. Pickton equally guilty as a sole perpetrator or as a "party" to the killing.
"The appearance of fairness in this trial was evaporating," he said.
The Court will ultimately decide whether Mr. Pickton - who is believed to be Canada's most prolific serial killer - ought to be granted a new trial.
If the judges decide that fairness requires a new trial, the courts will have to replay an arduous case that consumed five years, featured 129 witnesses and included 1.3 million pages of documents.
The Crown theory at Robert Pickton's murder trial was that he shot or strangled six sex-trade workers on his pig farm in Coquitlam, B.C.
In December, 2007, a jury agreed, convicting Mr. Pickton of the second-degree murder of Sereena Abotsway, Mona Wilson, Andrea Joesbury, Marnie Frey, Brenda Wolfe and Georgina Papin.
He was sentenced to life in prison with no parole eligibility for 25 years.
The key issue at his appeal is whether Mr. Pickton's trial judge misdirected the jury after it emerged from the jury room to ask whether it could convict Mr. Pickton even if it believed that he was helped by an accomplice.
Last year, the B.C. Court of Appeal split 2-1 in upholding his conviction.
B.C. Crown counsel Gregory Fitch and John Gordon maintain that retrying Mr. Pickton would be costly and futile. They state that there was overwhelming evidence against Mr. Pickton.
They also argue that it is irrelevant whether Mr. Pickton was the sole killer or the self-described "head honcho" of a murderous venture.
"Ordering a new trial in this case, where conviction is inevitable, would only serve to detract from society's perception of fairness and the proper administration of justice," they said in a brief to the Court.
In the five years before the case came to trial, it was marked by a painstaking police search of Mr. Pickton's farm that uncovered human remains, DNA and personal objects allegedly connecting Mr. Pickton to more than two dozen murders.
As the trial began, the Crown strategy focused on Mr. Pickton being the sole killer. It alleged that he lured the women to his farm, shot them execution-style, butchered their bodies in his slaughterhouse and buried the remains in different locations.
The trial moved along relatively smoothly until the sixth day of jury deliberations, when the jurors returned to ask if they could they still convict the Vancouver pig farmer if they decided that he had not acted alone in the gruesome murders of six Vancouver prostitutes.
After three hours of reflection and heated debate with Crown and defence lawyers, Judge Williams said that they could indeed find Mr. Pickton guilty, if he killed the women "or was otherwise an active participant" in the killings.
Soon afterward, the jury convicted Mr. Pickton on all six counts. Mr. Pickton's lawyer - Gil McKinnon - maintains that Judge Williams should not have permitted the Crown to recast its theory of the crime, from that of Mr. Pickton acting alone to the possibility of accomplices, to take advantage of the jury's quandary.
Taking dead aim at this prosecutorial change of heart this morning, Mr. McKinnon argued that the judge's initial instructions were thr product of considerable debate and co-operation.
He noted that after the jury asked its question during deliberations, Judge Williams pointedly reminded the Crown that it had agreed to the original instruction based on its theory.
In the absence of the jurors, Judge Williams slammed his hand down on his desk in frustration and said that his original instruction about the Crown's obligation to show that Mr. Pickton was the killer "had trouble written on it right at the time. I went with it because both counsel said that was the instruction that should be given."
Mr. McKinnon also noted that the Crown had flatly rejected suggestions from the defence during the trial that there were alternate suspects.
Mr. Pickton still faces another 20 counts of first-degree murder. The B.C. Crown has indicated that it will prosecute if a new trial is ordered on the original six murder charges.