Nyki Kish young Canadian girl wrongly accused and charged with murder.

[RandyN]

Originally Posted by Corsair 115

Maybe you should call up her defence attorney and give that person your legal advice on defence stratagems since you seem to fancy yourself as some expert on the case and Canadian law in general.

Maybe you should try to contain yourself to the topic.

[RandyN]

Originally Posted by Corsair 115

Don't know about the U.K. but in Canada there are often publication bans put in place to prevent that sort of thing.

Certainly not true about Canada in this case.

[RandyN]

Originally Posted by lionking

If you think I've broken the MA report me. I'm pretty certain I haven't. Their occupations are not relevant and using that term is an attempt to demonise them, or at least belittle them, in my opinion. Which is not rational

So to the last paragraph, a police conspiracy then?

OK done....

I'm pretty certain you have and I'm pretty certain its not your first rodeo either. (Knox moderated thread)

[anglolawyer]

In answer to requests for access to such things as transcripts etc. there are restrictions on what the family have been advised they can disseminate. There is, however a vast amount of material out there. Here are some links:

http://prelimnyki.wikispaces.com/space/content

contains vast tracts of evidence given at the preliminary hearings.

http://www.injustice-anywhere.org/index.html

The Injustice Anywhere section on the case which leads to many pieces of information

http://www.youtube.com/watch?v=MLbwg...ature=youtu.be

Police crime scene footage

http://youtu.be/uetUMimc05o

A bunch of news reports with some interesting stuff in them (including the first appearance of the Giroux meme)

http://www.thestar.com/news/crime/ar...ange-the-world

Report and pictures in The Star.com from 01 Mar 2011

[jhunter1163]

Originally Posted by RandyN

Why must this woman be Kish? I could have easily been Nalah Saleh or even the one legged prostitute...but most likely it was Watts since no witness was every positive who was who. In fact Dranichak (the coward run away porno guy) could not pick anyone out from a line up. And OK so what if Kish was in the second fight? How does that prove that she stabbed anyone? What it does do is bring forward the possibility that this may well be when Hammond stabbed her.

There are at least 4 women there during this fight on the darkened street...some witnesses say there were two women fighting...some say there were no women fighting...others say one woman...who is most often described as dirty blond in loose ponytail...which fits Watts and the one legged prostitute much better than Kish.

We want to think the police would never be so lazy and incompetent and so its hard to imagine they would get this so wrong...

The truth is street kids are not a sympathetic group and someone needed caught and punished. Case closed. That's what is happening in Toronto Canada. In fact its worse...an American citizen (Woolley) was stabbed that night in Toronto and that felony was not investigated. So is Canada safe for Americans? Are their rights protected?

It couldn't have been Watts; she stayed with her boyfriend after he got the snot beaten out of him. And, as I pointed out before, the woman in the second fight was described by two witnesses as having dreads and wearing a black tank top and a long skirt. That was Ms. Kish.

Blaming the victim is a despicable tactic. You can do better than that. I suggest you read Anglolawyer's posts as examples of how to conduct a defense.

[anglolawyer]

Originally Posted by jhunter1163

It couldn't have been Watts; she stayed with her boyfriend after he got the snot beaten out of him. And, as I pointed out before, the woman in the second fight was described by two witnesses as having dreads and wearing a black tank top and a long skirt. That was Ms. Kish.

Blaming the victim is a despicable tactic. You can do better than that. I suggest you read Anglolawyer's posts as examples of how to conduct a defense.

I am not sure it couldn't have been Watts. The fighting on the north lasted 2-3 minutes and I don't recall a witness who has Watts at all times beside Fresh (who I agree has a complete alibi as a passed out, bloodied victim) throughout this time. I need to re-check, but this is another cherry picking instance because the judge reasons that Watts was most likely the female who assisted Fresh because she was his girlfriend.

Originally Posted by Nordheimer para. [141

]That assertion [that Watts committed the crime] is also inconsistent with my conclusion that, given what happened to Mr. Fresh at the street car, it was Ms. Watts and not Ms. Kish who remained to help him a conclusion that follows from the pertinent fact that Mr. Fresh was Ms. Watts' boyfriend.

If it is a pertinent fact that Fresh was Watts's boyfriend for the purpose of deciding it was her who went to his aid, why it is not also a pertinent fact in deciding that it was Watts who split up Hammond (I think it was Dranichak) and Fresh at the streetcar?

Also, another problem with the judge's finding here, and it bothers me there is no proper timeline for the events, is that Stopford and Paget, if I recall, only see two women, or only think they see two women. In fact they are demonstrably wrong about that but if the only women they saw were Watts and Nyki Kish, how did Watts manage to be in two places at once, both comforting Fresh and helping Nyki out when she was cut?

I can tell you for a fact, practically down to the second, that Fresh remained down and out until after Hammond had made off clinging to the side of the taxi. Nyki received her injury before that event and was seen to be taken care of by the other of the 'two' women i.e. Watts (in fact, I think it was Nalah Saleh but let that pass). It follows that on the judge's narrative Watts left Fresh's side before he got up and crossed the road.

I know this having calibrated three 911 calls together as follows [the square brackets indicate my guess as to who is being referred to by the caller]:


00:35:58 Y Newman calls 911
00:36:01 Amanda Jones calls 911
00:36:08 Street fight going on involving 6 or 7 people (Newman)
00:36:12 Fight is blocking traffic (Newman)
00:36:24 Patsiopolous calls 911/one guy’s got blood coming out of his head (Newman)
00:36:37 violence is outbreaking on N. side of Queen street (Patsiopolous)
00:37:14 [D Fresh] standing up right now (A Jones)
00:37:22 [Hammond] punching the side of a taxi (Patsiopolous)
00:37:34 [Hammond] being dragged by a cab right now (Newman)
00:37:37 [Hammond] got dragged by a car a couple of blocks (Patsiopolous)
00:37:44 [D Fresh] starting to walk away right now (A Jones)
00:37:47 Addressing [N Kish] ‘Do you need an ambulance. Are you bleeding?’ (Patsiopolous)
00:37:54 [D Fresh] across the street right now (A Jones)
00:37:57 Addressing [N Kish] ‘Could you please lie down?’ (Patsiopolous)
00:38:06 [The street kids] are heading west (A Jones)
00:38:18 [The street kids] are outside One of a Kind Pasta [A Jones]
00:38:27 [Woolley] excitedly shouting against a background of indistinct voices (overheard in Patsiopolous’s call)

As to the criminal liability of Hammond, if we rewind the action and let the fatal blow fall short by a few millimetres, so as not to penetrate his heart, now he ends up with some nasty cuts and bruises but basically OK (the medical people will tell me if that's wrong) and in that case there is a pretty good case against him for assault and/or for making an affray (or its Canadian equivalent, if any). The first violence seems to have been inflicted by the jocks, one of whom was seen to throw Fresh into a store front window (so hard the witness was surprised the window didn't smash) while Nyki was also seen to have trash thrown on or at her, all before the melee reached the streetcar. So it's like a bar room brawl in which everyone is guilty and the court hardly needs to bother to sort out who started it - a plague on all your houses basically. So I go that far with Randy (who can take care of himself of course but I am not distancing myself from what he said).

[jhunter1163]

Originally Posted by anglolawyer

As to the criminal liability of Hammond, if we rewind the action and let the fatal blow fall short by a few millimetres, so as not to penetrate his heart, now he ends up with some nasty cuts and bruises but basically OK (the medical people will tell me if that's wrong) and in that case there is a pretty good case against him for assault and/or for making an affray (or its Canadian equivalent, if any). The first violence seems to have been inflicted by the jocks, one of whom was seen to throw Fresh into a store front window (so hard the witness was surprised the window didn't smash) while Nyki was also seen to have trash thrown on or at her, all before the melee reached the streetcar. So it's like a bar room brawl in which everyone is guilty and the court hardly needs to bother to sort out who started it - a plague on all your houses basically. So I go that far with Randy (who can take care of himself of course but I am not distancing myself from what he said).

I don't disagree that had he survived, he probably would have been facing some charges. He was probably sufficiently aware to realize that too, hence his "no comment".

That doesn't change any of the facts in the case though. There's still no evidence that Watts was in the fight; there was only one woman seen by all the witnesses, and that was Ms. Kish.

[anglolawyer]

Originally Posted by jhunter1163

I don't disagree that had he survived, he probably would have been facing some charges. He was probably sufficiently aware to realize that too, hence his "no comment".

That doesn't change any of the facts in the case though. There's still no evidence that Watts was in the fight; there was only one woman seen by all the witnesses, and that was Ms. Kish.

OK - please tell us what the witnesses saw her do.

[anglolawyer]

Originally Posted by D'rok

Does not follow.

First of all, I'm not talking about actual appeals; I'm talking about internet advocates and what can reasonably be determined in forums like this one.

I thought about this some more. I respectfully disagree. Subject to the proviso that we have access to all that the appeal court can see, which is nothing more than transcripts, plans and drawings etc. we have exactly the same material to go on as they do. The appeal court does not hear live witnesses, just argument. We can argue here just as well, subject as mentioned.

Originally Posted by D'rok

Secondly, In a case where there seems to be an egregious error by the trier of fact, a new trial can be ordered. Also, I didn't say appellate courts never retry the facts; I said they were reluctant to. And for good reason. Those reasons overlap with the reasons why we should be careful about doing the same.

Agreed, which is why material which may prejudice a new trial will hopefully not show up here. But there is no prejudice I can think of arising from discussion of a public legal proceeding, which this trial was.

Originally Posted by D'rok

Possibly. But once again, we have only the written reasons to work from. How do you propose we do these things here? How can we really come to any reasonable conclusion about the case (other than in the manner I described in another post)?

As stated above, by the same process the appeal court will use, by reviewing selected documents and hearing argument, and then applying the relevant Canadian law.

Originally Posted by anglolawyer

An appeal court might also have a different take on the judge's refusal to do anything about the negligent loss of the two CCTV films.

Originally Posted by D'rok

That's a different issue. And again, we are some joes on a forum, not an appeal court.

It's not a different issue really. The whole prosecution could have been stayed on the defence application. That could have been a knock out blow, or the judge could have allowed a mini-trial to investigate how the cops came to lose two crucial pieces of evidence instead of dismissing the stay application and ignoring the application for lesser relief altogether. And with respect, we are not some joes on the internet (well, we are but that's not all we are) - we are also citizens of [insert name of, hopefully, democratic country governed, hopefully, by the rule of law here] and we own and pay for these legal systems which are ultimately accountable to us. What we say and think matters. This stuff is certainly not the property of some elite lawyers but of everybody and, subject to access to the relevant information we are just as capable, between us, of figuring out where justice lies imho. If a miscarriage of justice has occurred that is everybodies' business and a system which shut us out from discussing it properly would not be an open system but a dangerous one.

[LashL]

Originally Posted by anglolawyer

In answer to requests for access to such things as transcripts etc. there are restrictions on what the family have been advised they can disseminate.

Sure, but trial transcripts have to be obtained and filed with the Court of Appeal for the appeal to be heard, and anyone can purchase a copy so there shouldn't be too much difficulty in obtaining same (other than cost). It would be easier, though, if I knew who appellate counsel is.

[Draca]

Originally Posted by LashL

Thanks, Draca. I will certainly look through those in more detail as time permits, but none of them appear to be trial transcripts, which is what I am most interested in at present as mentioned above.

In the meantime, do you know who Ms. Kish's appellate counsel is, by any chance?

Originally Posted by LashL

Sure, but trial transcripts have to be obtained and filed with the Court of Appeal for the appeal to be heard, and anyone can purchase a copy so there shouldn't be too much difficulty in obtaining same (other than cost). It would be easier, though, if I knew who appellate counsel is.

Phillip Campbell from Lockyer Campbell Posner

[LashL]

Originally Posted by Draca

Phillip Campbell from Lockyer Campbell Posner

Thanks, Draca. That is a very good choice for appellate counsel in a criminal case. Is AIDWYC involved as well?

[anglolawyer]

Trial transcripts are now available here:

http://trialtranscripts.wikispaces.com/space/content

[D'rok]

Originally Posted by LashL

I have not followed this case at all and I have not read Justice Nordheimer's reasons for judgment in detail yet, so I have no opinion at present about the guilt or innocence of Ms. Kish, but this case is local to me and the trial transcripts will have been ordered as a matter of course as they have to be filed with the Court of Appeal, so if anyone knows the name(s) of counsel representing Ms. Kish on her appeal, I would be willing to give them a call to see how voluminous the transcripts are and go from there with a view to obtaining copies, etc. if people are interested in that.

Sounds good to me. I look forward to your thoughts on this.

[RandyN]

Originally Posted by jhunter1163

It couldn't have been Watts; she stayed with her boyfriend after he got the snot beaten out of him. And, as I pointed out before, the woman in the second fight was described by two witnesses as having dreads and wearing a black tank top and a long skirt. That was Ms. Kish.

Blaming the victim is a despicable tactic. You can do better than that. I suggest you read Anglolawyer's posts as examples of how to conduct a defense.

Blaming an innocent person for crime she did not commit is despicable. And Canada has truly taken a despicable position.

I think your opinion of how I can or can not do better is an example of a personal attack of a member and as a moderator you should know better. Hopefully someone can explain to you that you should stay on topic and keep your opinions about a poster to yourself... this is exactly the type of behavior the ruined the Knox thread. Perhaps a refresher course of the rules?

[Corsair 115]

Originally Posted by RandyN

Maybe you should try to contain yourself to the topic.

Two pertinent questions to ask of you: (1) Are you a lawyer able to practice law in Canada, and (2) were you in the courtroom for each day of the trial, listening to every moment of testimony. If you answered no to these questions, then I must wonder on what basis of authority or knowledge do you present your apparently iron-clad certainty that the judge's decision is wrong.

Note that I am taking no position either way on the outcome of the trial. There is an appeals process, and if Ms. Kish or her legal counsel feel there are grounds sufficient to make an appeal of the decision then I would naturally expect they would avail themselves of that opportunity. At which point the decision will be reviewed. In other words, let the system do its job.

For some reason you appear quite insistent on there being a transgression in this case, and I cannot determine where that insistence comes from, particularly if you are not closely connected with the details of the investigation and trial.

[anglolawyer]

Originally Posted by anglolawyer

Trial transcripts are now available here:

http://trialtranscripts.wikispaces.com/space/content

I am sorry. This link seems not to be working. I am making enquiries about it and will return.

[anglolawyer]

Originally Posted by Corsair 115

Two pertinent questions to ask of you: (1) Are you a lawyer able to practice law in Canada, and (2) were you in the courtroom for each day of the trial, listening to every moment of testimony. If you answered no to these questions, then I must wonder on what basis of authority or knowledge do you present your apparently iron-clad certainty that the judge's decision is wrong.

Note that I am taking no position either way on the outcome of the trial. There is an appeals process, and if Ms. Kish or her legal counsel feel there are grounds sufficient to make an appeal of the decision then I would naturally expect they would avail themselves of that opportunity. At which point the decision will be reviewed. In other words, let the system do its job.

For some reason you appear quite insistent on there being a transgression in this case, and I cannot determine where that insistence comes from, particularly if you are not closely connected with the details of the investigation and trial.

I would like to address your questions if I may. Briefly, the relevant law is not so abstruse as to be accessible only to Canadian lawyers and the appeal judges will not have been in court every day listening to trial testimony either. Presence in court every day is not a pre-requisite to discussing any legal case.

Nyki Kish is in prison right now. Her irreplaceable youth is being destroyed now, every day. If she is there due to a glaring miscarriage of justice, now is the time to get worked up about it and simply assuming everything is OK because there will be an appeal is complacent and passive. I believe there are forensic points within the evidence still to be teased out and that a discussion of the case need not be a passive exercise.

Argue for the soundness of the verdict by all means, but not against the principle that argument is worthwhile.

[anglolawyer]

OK, please try this, which should hopefully link you to the trial transcripts:

http://prelimnyki.wikispaces.com/

[jhunter1163]

Originally Posted by RandyN

Blaming an innocent person for crime she did not commit is despicable. And Canada has truly taken a despicable position.

I think your opinion of how I can or can not do better is an example of a personal attack of a member and as a moderator you should know better. Hopefully someone can explain to you that you should stay on topic and keep your opinions about a poster to yourself... this is exactly the type of behavior the ruined the Knox thread. Perhaps a refresher course of the rules?

If you feel that I've breached the rules, report me. Moderators are bound by the MA, just like everyone else, and have no qualms about infracting each other if it is warranted. I just wanted to point out that there are better ways to argue your case than slandering the victim.

[RandyN]

Originally Posted by jhunter1163

If you feel that I've breached the rules, report me. Moderators are bound by the MA, just like everyone else, and have no qualms about infracting each other if it is warranted. I just wanted to point out that there are better ways to argue your case than slandering the victim.

I am pretty sure I have already reported you.

Telling the truth about an abusive, violent, drunk person who happened to be employed in the pornography business is not slander. These are simply facts of the case testified to by a dozen or more witnesses.

I don't hear you complaining too loudly about the fact that one reason Canada rushed to judgement in this case is because the 4 persons arrested where continually described as panhandlers who killed for spare change. I happen to think that is unfair and likely caused a rush to judgement.

I am not arguing any case...nor am I interested in changing anyone's opinion...and I did not request your advice on how to post or how to make my point... which for anyone else would be defined as off topic disruption.

Now please try to attack the subject and not the poster.

There are several victims in this case...a couple of assault victims, a couple of assault with a deadly weapon victims, a couple of victims of police incompetence...

Lets start there. On the night of this street brawl only four people were arrested. Work backwards from the trial transcripts to see when police attained probable cause to charge Nicole Kish with murder.

I can save you time....they never had probable cause to arrest her for much of anything. In fact even your own repeated theme is that a girl (it has to be Nyki) was involved in the second fight. OK...I disagree, but lets say I agree this is true. So what? This is when she was stabbed by Hammond. So he is guilty of assault with a deadly weapon. What else? Could she have been trying to protect her boyfriend? Sure. Hammond stabbed him too... and the facts are that Hammond took the knife from Watts as soon as she brought it out.
Do you suggest that Kish took this knife from Hammond? He is no slouch after all ...he is capable of knocking someone out cold with one punch... Kish had no injuries except for a knife wound. How is that possible? She has no DNA transfer (Locards law), no blood, spit, sweat...nothing. Well I take that back...after testing Kishs clothing 4 times they had nothing...on the 5th go round they came up with a trace of Hammond on her shoe. Watts OTOH had copious amounts of Hammond dna, spit, bite marks, blood on her body and clothing...oh and guess what ...Watts admits that it was her knife found on Mr Hammond.

The Crowns pathology report describes the wound that likely caused Mr Hammonds death...made by a smooth edged knife as opposed to a severely serrated one (Watts knife). Well, not exactly since the Crown pathology expert and the defense pathology expert are one and the same since Canada is special and all doctors and DNA expects are fair and unbiased in Canada. Therefore, a poor Canadian citizen is not entitled for help in getting another opinion from a better pathologist who is certainly capable of studying wounds and determining if the blade was smooth or more like a frickin wood saw blade.

Its easy to make a case if you are not required to show probable cause and you control how much money is spent on the defense of this poor person. Oh thats right she was just a poor dirty panhandling street kid...good thing they got her off Canadian streets.

3 of the 4 arrested were released and deported before the DNA results were back from the lab. That tells me something odd is happening in Toronto. And it gets better...police never tested Mr Hammonds shirt for DNA and they never tested any of Jeremy Woolleys clothing at all. So why is one arrested?

No one to this day saw anyone stab Mr Hammond. 20 witnesses or more testified. No two witnesses testify to seeing the same thing. One primary witness admits closing her eyes in fear and that she is likely confusing girls...I suggest that every witness is confusing girls because none mention Nalah Saleh and she was definitely there...none mention the one legged prostitute either and she was certainly there. If anyone had dreds that night it was likely NALAH SALEH.

Naylah Sayleh was riding a bike that night. Neither Watts or Kish rode or even had a bike. In fact after seeing Kishs clothing I would say it was impossible for her to ride a bike that night...

Well at least they got one panhandler off the street. Why don't you Canadians just lock up all poor people? 2 birds and all that...

[lionking]

Randy, before you start reporting everyone who questions or criticises you, from the MA:

Quote:

Having your opinion, claim or argument challenged, doubted or dismissed is not attacking the arguer

and

Quote:

this does not mean that Members will be insulated from all insults and certainly not from challenges

[anglolawyer]

Originally Posted by jhunter1163

Gallately and Desilvia describe the woman in the second fight as wearing a tank top and having matted hair or dreads. Decarvalo and Mir also saw the same woman in the fight as well as after, holding her arm at the ambulance. That was Ms. Kish. And, again, there was only one woman in the second (fatal) fight.

And I'm not sure why you are so dismissive of the prosecution's theory on how the blood got on the knife. It seems entirely consistent with the known facts to suggest that Mr. Hammond, after being stabbed by Ms. Kish, took the knife from her and stabbed her.

There was another knife, that of Mr. Fresh; it was tested and no blood was found on it. There's no evidence to suggest any third knife was used.

I will come back to you on your first paragraph, but on the highlighted ones, I will quote from my article on the case:

Originally Posted by Clive Wismayer

It is clear the judge greatly oversimplified the evidence to make it fit his theory. A crucial example is his insistence there were only two knives, one of which belonged to Fresh and was found to have no blood on it. The finding enabled him to imagine he could track the single, solitary knife supposedly used to stab both Nyki and Hammond (like the magic bullet in Dealey Plaza). It was seen in her mouth or hand at the streetcar fight and somehow transported across the road to the second fight where Hammond took it away from her before dropping it by the church steps. As that was the only ‘active’ knife it follows she must have stabbed him with it, or given it to someone to stab him and that he stabbed her back before decamping.

The judge said:

‘ … the blood of Ross Hammond and the blood of Nicole Kish were found mixed together at the hinge of the knife, that is, where the blade meets the handle. It is again an irresistible inference from that fact that that the same knife caused the wounds to both.’

With respect, it is no such thing. Hammond could have been stabbed by another knife altogether but got his blood on the one he wrenched away, either in the course of doing so or simply by holding it with his injured and bloodied hands. There was no expert’s evidence before the judge to the effect that blood at the hinge signified anything and it is not clear whether his reference to this is merely descriptive or actually a stepping stone in his reasoning. If the latter, there is no evidential basis for it and it is not explained.

He continued:

‘Still further is the fact that the only other knife that we know was present in the course of these events, belonged to Douglas Fresh. Not only was Mr Fresh still in possession of that knife when he was arrested, it was tested for blood and none was found.’

This passage is deeply troubling. It borders on a finding that there were only two knives at the scene, one of them, Fresh’s, wholly unused. It not only ignores the overall reality of the situation, in which a melee involving numerous people by no means all, or even a majority, of whom were accounted for and searched, but also specific evidence suggesting, directly or otherwise, the presence of other knives e.g.

the two men seen by Shaun Park walking away, one of whom was lifting his shirt and showing off stab wounds;
the man seen lifting a torn shirt in the surveillance video to display wounds (who may or may not be the man seen by Park)
the wound to Jeremy Woolley;
the male and female seen by Mr Gallately hastily departing from the scene;
the male voice heard by Cam Bordignon saying ‘you die tonight’
strikingly, Fresh alone had two knives on him, one a sort of Swiss army-type affair (a ‘Leatherman multi-tool’) but nonetheless featuring a serviceable blade.
Faith Watts also had a Leatherman multi-tool in addition to the knife Hammond took away with him.

More generally, it doesn’t take much searching on the internet (or imagination) to realise it is common for Toronto pan-handlers to carry knives. On 7th January 2012 The Face.com reported one of them being shot by police in a shopping centre when so armed.

Only months before the incident in Queen street the Digital Journal related a typical incident of a refused request for money being met with threats backed with a knife. The report concluded:

‘The streets of Toronto are getting dangerous. Hopefully other panhandlers don't think this is the right approach.'

Let's focus on 'the irresistible inference'. It matters very much that the judge uses this phrase. Say he's right and Hammond's blood on the knife (at the hinge) proves that knife stabbed him. If that is correct and if his finding that Nyki had possession of the knife at some stage, like when separating Hammond (supposedly) from Fresh, then she's nailed. But it simply isn't irresistible at all, due to the bleeding from Hammond's hands, and because the crown had to prove its case BRD it is enough for the defence to point to this alternative, plausible explanation for that point to disappear: the crown has failed to prove the knife was the murder weapon.

On the second point, if the circumstances were different I could imagine it being quite reasonable to say there was no evidence of other knives, say if the fight took place in a confined space indoors with good lighting between a closed and small class of persons, call them A1, A2 and V, only A1 is seen with a knife in his hands during the fighting and V winds up dead clutching a similar-looking knife with his own and A1's blood on it. This is fine and the prosection could probably prove, assuming one or more reliable witnesses, there was just the one knife. But on West Queen Street we have A1, A2, A3 right on up to maybe A14 or more, plus V1 and V2 (whom almost no one could tell apart) and all bar A1 to A4 disappear into the night and are not traced or searched (in fact the cops hardly bothered to look). Furthermore, in what everyone is taking to be the mortal phase of the combat (not necessarily correctly but that's another post) no one sees any of the Attackers with a knife. Now, in this scenario, can the crown really be said to have excluded the possibility there was more than one knife - beyond reaonable doubt? If so, then this is a magical knife! It was used to inflict superficial wounds to Hammond's back, then 5 deep wounds to his front, one fatal, a cut to Jeremy Woolley's arm, a cut to another guy's torso and finally a cut to Nyki's left forearm and the only one of these that is witnessed, or I should better say, evidenced, by a massive irony, is the victim's assault on his killer. Incidentally, now I think of it, where is Woolley's blood on that knife, and the other guy's too?

These two points about the knife, together with the misidentification (IMO) of Nyki as the one who broke up the Hammond (Dranichak IMO) -v- Fresh fight are absolutely key and very much more important than the conflicting and inconclusive evidence of Nyki's role in the north side fight.

[halides1]

Originally Posted by Corsair 115

There is an appeals process, and if Ms. Kish or her legal counsel feel there are grounds sufficient to make an appeal of the decision then I would naturally expect they would avail themselves of that opportunity. At which point the decision will be reviewed. In other words, let the system do its job.

Corsair,

The blog ProsecutorialRant wrote about a case in South Carolina (United States), "The presumption of regularity is a convicted felon’s worse nightmare. An accused is innocent until proven guilty-but only before trial. Once convicted, the presumption of innocence is replaced with the presumption of guilt. Reviewing courts assume that the underlying proceeding was conducted in a fair manner and in accordance with the law. The jury’s verdict is near sacrosanct and rarely disturbed on appeal or in any subsequent proceeding. The problem is that sometimes juries make mistakes. Lies are sometimes believed; the truth, likewise, is occasionally obscured or ignored. The appellate courts are not designed to correct this type of error and will rarely substitute their judgment with that of the jury’s. Unfortunately, when errors of this sort are made, the wrongfully convicted have little recourse." IANAL, and perhaps this passage does not apply to the Canadian system, but based on a couple of maple-leaf miscarriages of justice with which I am casually acquainted, I am not optimistic. In the U.S. it commonly takes decades to correct a miscarriage, even when they are corrected at all.

[Corsair 115]

Originally Posted by anglolawyer

I would like to address your questions if I may. Briefly, the relevant law is not so abstruse as to be accessible only to Canadian lawyers ...

Perhaps not, though I find that doubtful. Does it not require some years of study and to pass an examination in order to be able to practice law? That would indicate to me the field requires one to have a fairly comprehensive body of knowledge in order to fully understand its operation.

Originally Posted by anglolawyer

... and the appeal judges will not have been in court every day listening to trial testimony either. Presence in court every day is not a pre-requisite to discussing any legal case.

Fair enough. Let me rephrase to say that one would need something more substantive that reading a blog about the case or watching a new news reports. Combing through the entire trial transcript, for example. How many critics of the decision have done that yet?

Originally Posted by anglolawyer

Nyki Kish is in prison right now. Her irreplaceable youth is being destroyed now, every day. If she is there due to a glaring miscarriage of justice, now is the time to get worked up about it and simply assuming everything is OK because there will be an appeal is complacent and passive.

The key word there being "if". As we weren't there that night, the only ones who do know what really happened are Ms. Kish and the other persons who were there. We are left to try and figure it out after the fact on the basis of what evidence is available.

Originally Posted by anglolawyer

Argue for the soundness of the verdict by all means, but not against the principle that argument is worthwhile.

My dispute is with those who seem certain that Ms. Kish is innocent. How can they possibly know that with absolute certainty? They were not there that night, and they are relying on the evidence available after the fact just as is everyone else. That should, it seems to me, mean there ought to be at least some doubt in their own conclusions as well.

I'll also point out that not guilty is not the same thing as innocent. Being found not guilty doesn't mean you didn't commit the crime, it only means the prosecution could not prove you committed the crime beyond a reasonable doubt.

[Locknar]

Folks, if you wish to discuss forum moderation please do so in Forum Management, not here. Please stay on topic and keep the discussion civil/polite.

Posted By:Locknar

[LashL]

Originally Posted by anglolawyer

OK, please try this, which should hopefully link you to the trial transcripts:

http://prelimnyki.wikispaces.com/

Thank you very much. I was indeed able to locate them via that link; I have downloaded all 2200+ pages of the trial transcripts and have started reading. I am very much obliged for your kind assistance.

[anglolawyer]

Originally Posted by LashL

Thank you very much. I was indeed able to locate them via that link; I have downloaded all 2200+ pages of the trial transcripts and have started reading. I am very much obliged for your kind assistance.

Thanks for those thanks but thanks are due to Nyki's mum, Christine Bivens.

[anglolawyer]

Originally Posted by Corsair

Perhaps not, though I find that doubtful. Does it not require some years of study and to pass an examination in order to be able to practice law? That would indicate to me the field requires one to have a fairly comprehensive body of knowledge in order to fully understand its operation.

Yes, all legally qualified persons are highly intelligent and learned and warrant the utmost respect.. Or maybe not so much. If you had sat on the jury in this case, the judge would have guided you in the law sufficiently to allow you to understand enough to determine guilt. So, it can't be that difficult. Here we are primarily concerned with these areas of law:

- proof beyond a reasonable doubt,
- identification evidence, and
- primary and secondary liability

but there are some others too, such as:

- the effect of the cops' negligent loss of crucial CCTV evidence (which the judge rather than the jury would decide)
- judicial notice (Canadians may call this something else - it means things the judge is allowed to know without having it proved and it comes up in regard to 'the irresistible inference')

Of these, far and away the most important is the burden and standard of proof. The burden is on the crown and the standard is: beyond reasonable doubt.

Quote:

Fair enough. Let me rephrase to say that one would need something more substantive that reading a blog about the case or watching a new news reports. Combing through the entire trial transcript, for example. How many critics of the decision have done that yet?

Well, not me, but I am a critic nonetheless. I think you set the bar too high. Remember, no one saw Hammond get stabbed at all, let alone by Nyki Kish, so we need some compelling evidence to make up for that such as:

- a confession: nope
- fingerprints on the knife: nope
- transfer from Hammond to Nyki or from her to him: no dice there either
- injuries to Nyki consistent with her being involved in a fight as the aggressor: zilch

What we have instead are findings or quasi-findings that:

- Nyki's and Hammond's blood on the knife mean that knife stabbed them both (wrong, clearly)
- there was only one active knife (not proved BRD and highly improbable anyway)
- Nyki was the female with a knife who broke up the streetcar fight between Hammond and Fresh (i.e. on the evidence of Stopford, who was not sure and gave a description much closer to Watts and Paget, a victim of the Giroux meme; and it probably wasn't Hammond anyway)

I do not believe you have to read every scrap of paper to form a view on these key points and btw. I guarantee the appeal court judges will not do so before making their decision so why should we have to? Things would be looking good for Radovan Karadzic if you were right because the evidence in his case runs to 1.3 million pages and would take, I calculated once, about 16 years to read, let alone organise, collate, annotate and answer.

Quote:

The key word there being "if". As we weren't there that night, the only ones who do know what really happened are Ms. Kish and the other persons who were there. We are left to try and figure it out after the fact on the basis of what evidence is available.

It's highly unlikely that anyone other than the true perpertrator knows what happened - other than Justice Nordheimer of course.

Quote:

My dispute is with those who seem certain that Ms. Kish is innocent. How can they possibly know that with absolute certainty? They were not there that night, and they are relying on the evidence available after the fact just as is everyone else. That should, it seems to me, mean there ought to be at least some doubt in their own conclusions as well.

Who are these people who are certain? I'm not. Not about what happened. I am reasonably sure though the case was not proved to the required standard. Also, doubt is assymetric in a criminal case: doubt that she is guilty is not the same as doubt she is innocent because, at trial, both result in her walking free. That could be put better. The default position is: she is innocent. It's a legal presumption, meaning it must be displaced by evidence which leaves no room for any reasonable doubt.

Quote:

I'll also point out that not guilty is not the same thing as innocent. Being found not guilty doesn't mean you didn't commit the crime, it only means the prosecution could not prove you committed the crime beyond a reasonable doubt.

The reason the threshold of proof is set high is to minimise the chance that innocent people get jailed. That's a policy decision made, ultimately, by The People. It is an important principle, even a fundamental one, and it is important it should not be subverted by the type of thinking which I suspect lies behind what you say. A lot of people were surprised at the outcome of the OJ Simpson case. Same for Casey Anthony but to me those cases show the system working as it should. The bar for guilt should be set high.

But we can change that if we want. We could agree to lower the bar to, say, the balance of probabilities (the civil standard of proof) or just let the police do what they like and not bother with courts and justice at all, in the interests of keeping order. While we have the current system though, democratically agreed, I think we should have the intellectual honesty to apply it properly and let defendants walk even if we remain not completely satisfied. I hasten to say, that is not my position in this case. I believe she's innocent.

[RandyN]

I have read a good deal of the trial transcripts. First, Ms Kish must start out innocent. The police must have probable cause to arrest and detain her. That requires the police to investigate the case and gather evidence. Then they make their arrest and turn the evidence over to the Crown (in this instance) who prosecutes the case. The lead detective in the case charged Ms Kish with second degree murder. In his press conference he stated that he had witnesses (which turned out to be a lie) and he also had video that proved her guilt. (this also was a lie). And almost 3 full years later the police still had no witness who saw anyone commit murder and they have no video showing the crime either.

When Kish was charged the DNA data was not back...and yet her three friends were released and deported to the US; how was it possible for the police to do these things? One needs to start questioning what the Canadian police actually had at the time when they made these decisions in this case. We have the benefit of perfect hindsight and a couple thousand pages of transcripts that clearly indicate that the police had no probable cause to charge Kish with murder. They lied about the witnesses...they lied about the video...

Forget if she is guilty or innocent or even unproven beyond a reasonable doubt. She should never have been brought into a court at least on charges more serious than her 3 friends anyway. This is what Canadians should be wondering. How is it possible for police to do this? 3 go free...not exactly free ...Watts was charged with resisting arrest and some other minor nonsense...both men were charged with less. So what did the police end up having? Go into the files and see...20 plus witnesses and no two come close to agreeing what they saw...except for one thing...each and every one said they did NOT see Hammond stabbed by anyone. Are Canadian citizens satisfied that the police got this right? Its all available...go look.

On the street they know of a violent dude named Hal...he pals around with his "brother" Twitch. Several street people saw Hal bragging that he was stabbed in a knife fight that night. He carried a purple handled knife and someone saw him toss something into the sewer that night. The police never investigated these reports.

Watts heard about Hal all the way over in Montreal...a friend there upon hearing that Watts would be visiting Toronto warned her to stay away from Hal. She should have listened.

[stilicho]

Originally Posted by RandyN

Another vicious young adult chooses to kill and is sent away to prison for life. Boo-***********-hoo.

[anglolawyer]

Can we all please glance at Locknar's post upthread and try to keep the discussion about Nyki Kish. I am keen to debate with the reasonable upholders of the verdict here as I am sure we can learn from each other by doing so. Amanda Knox is a moderated subject at JREF and there are plenty of other places we can lock horns about her case if we want, but not here please folks.

[Blue Mountain]

Originally Posted by stilicho

Another vicious young adult chooses to kill and is sent away to prison for life. Boo-***********-hoo.

"First they came for the young punks, but I wasn't a young punk so I did nothing."

We examine these contentious cases to see if the police and courts are holding up their end of the justice scale. A lot of the times it appears they aren't. I remind you again of Steven Truscott, Donald Marshall, David Milgaard, and Guy Paul Morin, all of whom were falsely convicted of murder because the police decided on their murderer first and then applied the evidence to fit the accused.

We currently have a minister of justice in Canada who thinks very much like you do, and I'm afraid.

[Cuddles]

Originally Posted by anglolawyer

Remember, no one saw Hammond get stabbed at all

Correction - no-one who has admitted to it saw Hammond get stabbed. Several people certainly saw it. A couple of people here have made the argument that it was likely just self-defence. A drunk guy started a fight, beat one person unconscious, then took a knife off someone and stabbed two people with it before getting stabbed himself. Given that the first part is undisputed, surely it wouldn't be difficult to convince everyone that's what happened if the evidence was consistent with it. Yet I'm not aware of any of the people who know what actually happened making such a claim. They'll dispute exactly who was where and who did the stabbing, but they all seem to be happy to accept that it was murder.

Originally Posted by Blue Mountain

We examine these contentious cases to see if the police and courts are holding up their end of the justice scale. A lot of the times it appears they aren't.

Define "a lot". As far as I'm aware cases like this are a tiny minority. While it certainly sucks for the people involved in a miscarriage of justice, let's leave the silly hyperbole out of it.

[halides1]

Originally Posted by Blue Mountain

These things happen because law enforcement personnel are not super-skeptical and logical thinkers. All too often they fall prey to the same logical fallacies that cause people to think they are psychic, or can prove relativity is wrong, or show that the Holocaust is a lie. The police get tunnel vision, fitting the clues to fit the suspect and not the other way around. Later when the truth comes out they close ranks and impede any inquiry into the affair.

[levity break]
The Onion's take on one "wrongful conviction."
[/levity break]

[anglolawyer]

Originally Posted by Cuddles

Correction - no-one who has admitted to it saw Hammond get stabbed. Several people certainly saw it. A couple of people here have made the argument that it was likely just self-defence. A drunk guy started a fight, beat one person unconscious, then took a knife off someone and stabbed two people with it before getting stabbed himself. Given that the first part is undisputed, surely it wouldn't be difficult to convince everyone that's what happened if the evidence was consistent with it. Yet I'm not aware of any of the people who know what actually happened making such a claim. They'll dispute exactly who was where and who did the stabbing, but they all seem to be happy to accept that it was murder.



Define "a lot". As far as I'm aware cases like this are a tiny minority. While it certainly sucks for the people involved in a miscarriage of justice, let's leave the silly hyperbole out of it.

I don't think it was self defence, from the horizontal pattern of the entry wounds and their individual horizontal alignment. What we are most likely looking for is Hammond on the ground, on his side, with his hands and arms up high over his head, which was getting kicked, and someone using that moment to plant the four closely spaced wounds very rapidly perhaps while standing at his back and bending over him. None of the innocent bystanders saw this, or maybe they did but didn't realise what they were looking at. It's possible that one or more of the other attackers was aware of what the killer did but not necessarily. It is an entirely idle question in the context of this thread, which is concerned with the evidence against Nyki Kish.

[lane99]

Originally Posted by Cuddles

...let's leave the silly hyperbole out of it.

Can't. As there's otherwise not much of a hook left.

Hard to garner much support with anyone other than the usual suspects when your battle cry is "she's probably guilty, but OJ and Anthony were acquitted, so why should Nyki Kish have to pay for *her* crime??"

[anglolawyer]

Originally Posted by lane99

Can't. As there's otherwise not much of a hook left.

Hard to garner much support with anyone other than the usual suspects when your battle cry is "she's probably guilty, but OJ and Anthony were acquitted, so why should Nyki Kish have to pay for *her* crime??"

Today, I signified my lack of interest in and/or time for all but two threads at JREF by the extraordinarily efficient means of not posting in them. I did the same yesterday and plan to likewise tomorrow. Just a thought.

There is a good arguable case for demonstrable innocence here but in order to grasp it you must first strip away those of the judge's findings which are not properly suppored by the evidence, which takes a little effort. I suspect it's that that will put all but the more curious and determined off this thread, which is fine with me, as those are the only people I wish to discuss the case with.

[Blue Mountain]

Originally Posted by Cuddles

Define "a lot". As far as I'm aware cases like this are a tiny minority. While it certainly sucks for the people involved in a miscarriage of justice, let's leave the silly hyperbole out of it.

My bad. Replace "a lot" with "sometimes". But the fact it happens at all is worrisome. Americans are still wrongfully executed in addition to being convicted and imprisoned.

Question for RandyN: Is this on topic for this thread, or would you prefer we keep the discussion to the Nyki Kish case?

[halides1]

Originally Posted by Cuddles

Define "a lot". As far as I'm aware cases like this are a tiny minority. While it certainly sucks for the people involved in a miscarriage of justice, let's leave the silly hyperbole out of it.

The false conviction rate quoted by Justice Scalia, 0.027% was calculated incorrectly. It is also worth pointing out that of the 1200 people who have left death row since circa 1976, 138 were released on the basis of being not guilty. Whether this does or does not constitute a "tiny minority" is in the eye of the beholder.