The Innocence Project is proposing that evidence be destroyed if a defendant states that he had no interest in it being retained. A formal court order would be made to reflect that.
In a responding brief, Crown counsel Robert Charney and Elaine Atkinson described the application as ill-defined, impractical and costly.
“It would cover every conceivable piece of material or evidence used in respect of an investigation, however ephemeral, transitory, impermanent, perishable or dangerous,” they said.
Authorities and Rajesh’s family members fought hard to keep Ms. Chaudhary behind bars until she was paroled in 2005. They portray her as an unrepentant, irresponsible woman who showed the bad judgment to choose a convicted killer – Anees Chaudhary – as her second husband.
Last November, the National Parole Board revoked Ms. Chaudhary’s parole because she had concealed income and assets, and had supplied deceitful explanations when challenged.
Ms. Chaudhary’s supporters hold her up as a model prisoner who obtained two university degrees and has shown extraordinary devotion to her children.
On the morning of his death, Rajesh disappeared while walking to school. His body was found in a parking lot several hours later. He had been strangled and sustained head injuries suggestive of an attempt to subdue him.
The police soon became convinced that Ms. Chaudhary – whose name was Sarabjit Minhas at the time – had killed Rajesh to get revenge against his uncle, her Hindu lover, Vijay Gupta, who was off in India at the time being wed in a union his parents had arranged without his knowledge.
In conversations with his lover that Vijay Gupta secretly recorded for police, Ms. Chaudhary repeatedly denied killing Rajesh - but cryptically suggested that she knew who had.
In an attempt to appease her family, Ms. Chaudhary had herself recently agreed to an arranged marriage with an older man she disliked. At her trial, Ms. Chaudhary’s defence lawyer, Ken Murray, presented the jury with an unfocused theory that pointed a tentative finger at her first husband.
In interviews with The Globe and Mail that stretch back to her early years in prison, Ms. Chaudhary has consistently asserted her innocence. She did so again in 1999 at a jury review of her case held under the Criminal Code’s “faint hope” clause.
In an affidavit prepared by the Innocence Project for a hearing this month, Ms. Chaudhary hinted for the first time that she might name two men who may have murdered Rajesh.
“Since the deceased’s murder, I have had reason to believe that family members of mine were in fact responsible,” her affidavit asserts.
The affidavit also states that two witnesses surfaced recently, one of whom claims that he heard a cousin of Ms. Chaudhary drunkenly admit that she was serving time for a crime he committed.
Ms. Chaudhary said that she kept silent in the past because she was afraid of her family and because she felt that she would be acquitted and the whole affair would blow over. She said that before her trial, she was so certain of being acquitted that she rejected a plea-bargain offer from the Crown that would have resulted in an 18-month sentence as an accessory to murder.
“The police have always put pressure on me to testify against the individuals who did it,” Ms. Chaudhary said in the interview. “I was young and didn’t know the justice system. Nobody, including my lawyer, thought they could get a first-degree murder conviction with such a lack of evidence.”
Prof. Young remarked that the plea offer was “very strange. It means they believed there were other perpetrators.”
Mr. Chaudhary’s fear of her family was not without foundation. In 1980, she survived a vicious machete attack at the hands of her brother. He later said her relationship with Mr. Gupta had been unacceptable and humiliating to her family. He was sentenced to five years in prison.
