Jurors recoil as Robert Badgerow's landmark 4th trial begins
Warning: Contains graphic content
It has been 35 years since Diane Werendowicz died — but the grisly details of her death are still able to shock a jury, even for the fourth time.
Extremely graphic photos of Werendowicz's body were shown in Superior Court in Kitchener, Ont. Wednesday, as former Hamilton steelworker Robert Badgerow's landmark fourth trial began.
It marks the first time in Canada that a person is being tried for a fourth time on the same murder charge. Badgerow, 58, has pleaded not guilty to first-degree murder in the 1981 killing of Werendowicz, a 23-year-old nursing assistant who lived in Stoney Creek, a community in east Hamilton.
As the Crown began its case, photos of Werendowicz's body were flashed on a massive screen in the courtroom, causing some jurors to physically recoil at the sight.
Some in the jury weren't able to look once they caught a glimpse, instead staring at the floor. One woman nervously grasped her necklace, shaking her head.
He called to brag to the 911 operator two days after dumping her body, face down, still breathing, into a creek, with a tire on top of her shoulders and head.- Cheryl Gzik, Crown lawyer
In her opening address, Crown Cheryl Gzik told the jury about the morbid scene some children stumbled upon in a creek bed the evening after she vanished, walking home from a bar in Stoney Creek on June 19, 1981.
Werendowicz was found lying face down in a creek near her apartment building.
"Her shoes were off. Her panties were off, lying nearby in the grass," Gzik said.
"The cause of death was strangulation and drowning. She was alive when she was put face down into the water, a heavy vehicle tire placed on her shoulders and head."
Badgerow's DNA found on body
Investigators found semen on the inside of Werendowicz's jeans, and on vaginal and anal swabs taken from her body. Badgerow's counsel said in a formal admission that he is "the source donor of the semen" that investigators found.
The Crown also focused on a 911 call made on June 22, 1981. The caller said Werendowicz was "raped before she was killed" and that she was "strangled with her purse."
"The killer would know these facts," Gzik said.The Crown said police had not made those details public.
"He called to brag to the 911 operator two days after dumping her body, face down, still breathing, into a creek, with a tire on top of her shoulders and head."
The Crown attests that call was made from a pay phone booth at Gate 6 at Hamilton steelmaker Dofasco, and that Badgerow was working near that gate when the call came in.
"Witnesses who know Badgerow identified his voice on the tape — the best man from his wedding, his brother-in-law, a former girlfriend and some co-workers," Gzik said.
Legal issues derail trial
Badgerow's trial was originally slated to begin on Monday, but was delayed for two days because of "legal issues," the jury heard.
Those issues were discussed with the jury out of the room, and therefore are covered by a publication ban and cannot be reported.
When the jury finally returned to court on Wednesday morning after two days of waiting, Justice Patrick Flynn told them that one of the jurors had been excused. An alternate juror has taken his place.
The reason for removing the juror was not explained in court.
In his opening address, Flynn told the jury they will have to consider how much time has passed since Werendowicz died when they are weighing witness testimony.
"We're dealing here with an event, a homicide, that's 35 years old ... you have to consider whether a witness has a good memory," Flynn said.
There will likely be transcript evidence from earlier proceedings, Flynn said, as some witnesses "aren't here anymore."
Making Canadian legal history
Badgerow's first trial was overturned on appeal 10 years after his arrest. Ontario's Appeal Court ordered a new trial, but the second trial ended in a mistrial in 2010, with the jury unable to reach a verdict. His third trial also ended in a mistrial because of a hung jury in 2011.
A Superior Court judge ordered a stay, which would have effectively ended the case against Badgerow — but in a ruling released in 2014, the Appeal Court overturned it and ordered Badgerow to stand trial for a fourth time.
In his opening address, Flynn told the jury that they will have to decide whether or not Badgerow killed Werendowicz, whether her death was unlawful, and whether or not the 58-year-old "had the requisite state of mind for murder."
"You're going to be asked whether he raped Diane Werendowicz," Flynn said. That aspect will prove critical to the outcome of the trial, because when a rape and murder are part of one continuous event, it is considered first degree murder.
The judge also told the jury that Badgerow is innocent until proven guilty.
"That presumption is only defeated if and when Crown counsel satisfies you beyond a reasonable doubt that Mr. Badgerow is guilty of the crime charged."
The trial is expected to last three to four months.
CBC News reporter Adam Carter reported live from the courtroom Wednesday. You can read a recap of his live blog below:
ABOUT THE AUTHOR
