Other man killed Diane Werendowicz, defence claims at Robert Badgerow trial

Robert Badgerow had sex with Diane Werendowicz the night she died, but someone else is responsible for her death in 1981, the defence claimed in closing arguments of the first-degree murder trial Tuesday.

In fact, defence lawyer Russell Silverstein said, police had it right the first time when they suspected Brian Miller – now a convicted sex offender.

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"Brian Miller is a murderer who just got lucky," Silverstein said, pointing to other violent attacks by Miller on women. Miller is lucky because none of the other women died, he said.

Miller's criminal record shows crimes that are "eerily" similar to the attack on Werendowicz.

Miller touched Werendowicz sexually, but did not rape her, which is why there was no DNA evidence linking him to the crime, Silverstein alleged.

Badgerow testified he met Werendowicz in the parking lot of Malarky's bar in Hamilton on June 18, 1981. They smoked a joint in his car, then had sex in the back seat.

Then, Silverstein said, she walked home and that's when she was attacked.

Defence questions rape in ravine

Werendowicz, 23, was found face down in a creek in June 1981. She was dressed, although police discovered she was not wearing underwear and the zipper on her jeans was down.

The Crown has alleged Werendowicz was raped and killed in the ravine.

Part of that, Silverstein said, was because her underwear was found along with contents of her purse, which were strewn about on the ground.

Silverstein argued rather than the unlikely scenario that Werendowicz was raped and then her pants were pulled back up, she instead may have removed her underwear during her sexual encounter with Badgerow in his car and placed them in her purse.

Silverstein said Werendowicz's body had no injuries consistent with rape; therefore, she must have had consensual sex with Badgerow. 

911 call questioned

Also at issue is a 911 call where a man, who did not give his name, told the operator details police say the general public would not have known about Werendowicz's death.

The call was made on June 22, 1981, and police said it was from a phone booth just outside Gate 6 at the Dofasco plant in Hamilton, where Badgerow worked.

But Silverstein said it was never confirmed with the 911 operator that the call came from that phone booth. And the line remained open even after an officer reported cutting the receiver off the phone as evidence. Once the receiver was cut, the line should have gone dead.

"The accuracy of this trace is totally undermined," Silverstein said.

Both Silverstein and co-counsel Ingrid Grant warned jurors about those who said the call was made by Robert Badgerow.

The only witness the defence claims is reliable was Beth Groves, who heard the tape without knowing the context and identified it as Miller.

Her "unshaken identification" is enough to raise reasonable doubt it was Badgerow who made the call, Silverstein said.

Witnesses 'can be sincere and be wrong.'- Defence lawyer Ingrid Grant

Grant said other witnesses may have been influenced – even inadvertently – by police. They knew Badgerow had been arrested, so that made them think it must be him on the tape.

Voice identification is "subjective," Grant said, "it's dangerous" and it "certainly does not correlate with evidence."

Badgerow, testifying on the stand, did not sound like the man on the 911 call she said.

The witnesses who identify the call as Badgerow may think they're right, she said.

"They can be sincere and be wrong," Grant said.

Badgerow's testimony

Badgerow himself testified he did not remember the encounter with Werendowicz beyond having sex in his car. Grant noted the Crown has suggested he is making that up.

"If he's making it up, why wouldn't he just make it up," Grant said. "He doesn't remember and that makes perfect sense."

That someone else killed Werendowicz "is the most plausible conclusion," Grant said.

The defense wrapped up its closing arguments Tuesday. The Crown will begin its final statements Wednesday morning.