The lawyer for a Fort Frances man convicted of killing his parents almost eight years ago filed an appeal last week for a new trial, saying he still believes Jamie Perlett to be innocent.
“I am more certain today than I ever was,” Dan Brodsky said late Friday.
“The appeal is rooted in very firm ground,” he added. “A new trial should be ordered and the prosecution’s attempt to resurrect the charges of first degree murder dismissed out of hand.”
Perlett was sentenced to life imprisonment—without eligibility for parole for 18 years—in January, 1999 after being convicted on two counts of second-degree murder in the shooting deaths of Carole and James Perlett while they slept in their Third Street East home.
“The appeal is not listed yet [i.e., no date has been set for argument],” Brodsky wrote in an e-mail to the Times last Thursday. “Jamie has an application to adduce fresh evidence.”
As first reported in Friday’s Daily Bulletin, this evidence is mainly in two areas—the first regarding determining the time the fatal shootings occurred through examination of the volume of blood loss and characteristics of shed blood.
Brodsky noted that during the trial, Jamie Perlett testified he called 9-1-1 within one or two minutes of hearing the shots that resulted in the death of his parents.
The police and paramedics took 10 minutes to respond to Perlett’s call.
In an attempt to challenge the veracity of Perlett’s claim regarding an intruder and regarding the timing of events prior to his 9-1-1 call, the Crown elicited evidence from coroner Dr. Peter Pan relating to the use of the volume of blood lost and the characteristics of shed blood as a measure of the passage of time.
Dr. Pan testified about the minimum time it would have taken for Mr. and Mrs. Perlett to have lost the amount of blood observed in the crime scene photographs.
He also was asked to provide an opinion about the minimum time it would have taken for the blood lost by Mr. and Mrs. Perlett to have changed colour as part of the clotting and drying processes.
In his closing address, the Crown invited the jury to add these two times together to determine the minimum period of time between the infliction of the fatal gunshot wounds and the arrival of the police.
The Crown then urged the jury to reject Perlett’s testimony on the basis that it did not correspond with Dr. Pan’s opinion, reads Brodsky’s appeal.
In an affidavit from Dr. David Chiasson, a specialist in forensic pathology and a consultant at the Office of the Chief Coroner of Ontario and at the Hospital for Sick Children, he claims Dr. Pan’s evidence in relation to blood loss, and changes in the colour and consistency of blood, ought to have been excluded.
Having admitted the evidence, the trial judge’s instruction regarding expert evidence generally—and Dr. Pan’s evidence in particular—was inadequate, Brodsky wrote in the appeal.
The other has to do with Perlett’s recollection of events and expertise regarding the retrieval of memories of traumatic events.
During the trial, the Crown argued Perlett’s statements about the events of March 22, 1996 were inconsistent and that he was intentionally lying to avoid detection or divert suspicion away from himself.
The Crown urged the jury to accept the inconsistencies as evidence he fabricated his story about the intruder.
The defence sought to call Dr. Elizabeth Loftus, a psychologist with an expertise on memory, to provide opinion evidence on the formation and retrieval of memories of traumatic events.
Dr. Loftus would have explained what inferences could be drawn from the alleged inconsistencies beyond those urged by the Crown, Brodsky wrote in the appeal.
Using the science of human memory, she would have offered a framework within which the jury could assess the nature of the inconsistencies and the explanations offered by Perlett for them.
But the trial judge erred in excluding Dr. Loftus’ evidence, finding that it was not necessary, the appeal states.
It also noted the trial judge further erred in finding that Dr. Loftus’ evidence was tendered to bolster Perlett’s credibility. In the alternative, the trial judge erred in failing to include the essence of Dr. Loftus’ evidence in his charge to the jury.
“We have been given until the end of April to finish the cross-examinations on the new evidence and then a date will be set for the appeal,” said Brodsky.
He added the appeal will be heard sometime this year.
While the sentencing took place in early 1999, the appeal process has been slow, with Brodsky having to wait more than two years just to receive the court transcripts.
The appeal was made on the following grounds:
•the trial judge (Justice Terence Platana) erred in taking the theory of the defence away from the jury;
•the trial judge erred in his instruction on motive;
•the trial judge erred in his instruction on post-offence conduct;
•the trial judge erred in his instruction on demeanour evidence;
•the trial judge erred in failing to correct Crown counsel’s efforts to shift the burden of proof;
•the trial judge erred in excluding the evidence of Dr. Elizabeth Loftus, a psychologist with a an expertise in memory; and
•the trial judge erred in admitting certain expert opinions expressed by post-mortem examiner Dr. Peter Pan, or in the alternative failing to give a proper limiting instruction on the evidence of Dr. Pan.
The order sought by the defence in the appeal states: “It is respectfully requested that the appeal against the directed verdict be dismissed and that the appeal against conviction be allowed and a new trial ordered on two counts of second degree murder.”
The Crown already had filed an appeal in September to have the charges against Perlett raised from second- to first-degree murder in the case of a new trial being called.
Perlett was arrested in Red Deer, Alta. and initially charged with two counts of first-degree murder on Aug. 26, 1996. His parents both had been shot in the head with James Perlett’s target pistol on March 22, 1996.
During the trial, Perlett testified he was awoken that night by the sound of gunshots. He said he ran upstairs and saw a man—dressed in black—carrying a gun.
Perlett said he grabbed for the gun, at which point the firearm discharged and he suffered a gunshot wound to the stomach.
A mistrial was declared in Perlett’s first trial in Thunder Bay in October, 1998.
At the conclusion of the Crown’s case in the second trial, a directed verdict was ordered on both counts of first-degree murder and the trial then proceeded on the lesser offences of second-degree murder.
After six days of deliberation in January, 1999, the jury returned a verdict of guilty on two counts of second-degree murder but made no recommendation as to parole ineligibility.
Perlett later was sentenced to life imprisonment without eligibility for parole for 18 years.
Perlett has been serving his sentence in Stony Mountain Penitentiary near Winnipeg.