A senior Crown attorney told a judge's misconduct hearing yesterday that he was personally and professionally shattered when Ontario Superior Court Justice Paul Cosgrove turned a murder trial into an investigation of a "giant, so-called conspiracy" by state officials.
Curt Flanagan, chief Crown attorney for a region in Eastern Ontario, said Judge Cosgrove acted on every innuendo and "scurrilous, malicious" accusation of wrongdoing hatched by Kevin Murphy, defence counsel for Julia Elliott.
"When a trial judge is making findings against a Crown attorney in relation to a so-called giant conspiracy, it has a tremendous effect," Mr. Flanagan said. "It was astonishing. I lost sleep over it. I was stressed by it.
"It was a shattering experience to be attacked professionally without any evidence. The most important thing to a lawyer is his credibility and integrity."
Mr. Flanagan's impassioned account came on the final day of a Canadian Judicial Council inquiry into whether Judge Cosgrove was biased against the Crown and has lost his ability to function as a judge. After a raucous, 18-month trial ending in 1999, Judge Cosgrove stayed Ms. Elliott's murder charge and alleged 150 instances of perjury, fabricating evidence, obstructing justice and conspiracy by the Crown and police.
Ms. Elliott had been accused of murdering and decapitating her former lover, 64-year-old Larry Foster, on Aug. 18, 1995.
The victim's son, Stephen Foster, testified yesterday that when he was in the witness box at Ms. Elliott's trial, he felt "abandoned" by Judge Cosgrove.
Mr. Foster said defence lawyer Mr. Murphy's rough and accusatory cross-examination shocked him and made him feel that he was the one who was on trial. "I was stunned, quite frankly," he said.
Mr. Foster said he was even more aghast - and frightened - after an incident in the coffee lineup in the courthouse cafeteria. Mr. Foster said he asked Mr. Murphy: "Have you always been such a pain in the ass?"
He said Mr. Murphy "flew out of control" and later asked Judge Cosgrove to take action against Mr. Foster. Judge Cosgrove advised Mr. Foster to get a lawyer and prepare for a contempt-of-court citation.
"Here I was, at the murder trial of my father, and I was going to go to jail before the murderer," Mr. Foster said. "It was insane. It left me even more despondent about the trial."
He said his family was horrified when Judge Cosgrove stayed the murder charge and Ms. Elliott seized the chance to flee Canada.
Several years later, after the Ontario Court of Appeal ordered a retrial, Ms. Elliott was extradited from Bermuda and has since pleaded guilty to a reduced charge of manslaughter in the death of 64-year-old Mr. Foster on Aug. 18, 1995.
The judicial council reserved its decision yesterday after hearing closing arguments in which Chris Paliare - a lawyer for Judge Cosgrove - argued his client has admitted acting "inappropriately." Whether those actions are tantamount to actual judicial misconduct is for the council to decide, Mr. Paliare added.
Another witness yesterday, lawyer David Humphrey - one of a team of contract Crowns brought in to keep the Elliott trial going - said he had feared Ms. Elliott would flee the country if her charge was stayed.
Mr. Humphrey said that an immigration official had been in the courtroom, prepared to apprehend her, and that he had been going to speed through a notice of appeal of the stay.
Mr. Humphrey said Judge Cosgrove foiled the plan by turning aside the immigration official's request and letting Ms. Elliott go free. A police surveillance team lost track of her after she went to her lawyer's office. She fled through a back exit and left Canada.