Crime Library: Criminal Minds and Methods

Paul Bernardo & Karla Homolka

Lawyer's Rape Tape Case

In April, 2000, according to a further report in the Toronto Star, during his trial on charges of obstructing justice, Paul Bernardo's former lawyer, Ken Murray, tabled a handwritten note he had received from Bernardo which warned him that the videos depicting the rape and torture of two teenage victims "may first appear to be irrelevant." The two-page letter, which also included a sketch of where the videos were hidden in a secret hiding place in a ceiling light in the bathroom of the home he shared with Karla Homolka also warned Murray not to view the gruesome tapes. "Although we will have to go through them in the future," the letter said, "at this time, I instruct you not to view them." According to another court document, Bernardo gave Murray the go-ahead just twelve days after the tapes were retrieved but there was no indication in the documents if Murray followed his client's orders at that time. Those instructions set off a three-year legal battle for Murray, who was charged after he withheld the tapes because Bernardo said they would be necessary for his defense.

After Bernardo was charged in May 1993 with the first-degree murder of Kristen French and Leslie Mahaffy, he wrote the note leading Murray to the tapes police had missed in a three-month search of the couple's home in Port Dalhousie, a suburb of St. Catharines, Ontario. In the note, Bernardo instructed Murray to use the code words "how about those Jays" if successful in finding the tapes and "how about those Leafs" if unsuccessful. The note ends with the comments "good luck" and "God bless."

Seventeen months after Murray received the tapes, he handed them in to the authorities and resigned from the case. A judicial inquiry later found that if the Crown had been in possession of the tapes, Homolka's plea bargain, made in exchange for testimony against her ex-husband, would not have been necessary.

Murray's lawyer asked the court for permission to use his client's letters and discussions with Bernardo so he could properly defend his client. Tony Bryant, Bernardo's new lawyer, argued that making those communications public would jeopardize Bernardo's planned appeal to the Supreme Court of Canada. Justice Patrick Gravely later ruled that Murray's right to defend himself far outweighed Bernardo's right to solicitor-client privilege.

On April 13, 2000, the Star further reported that during Ken Murray's trial on charges of obstructing justice, Paul Bernardo's murder trial lawyer, John Rosen, testified that Murray hadn't told him that he had Bernardo's rape videos when he asked him to take over the case in August 1994. He also stated that Carolyn MacDonald, Murray's junior counsel, hadn't mentioned the videos during a discussion in which she criticized Murray's handling of the case. Rosen insisted that even when he was formally hired as Bernardo's new lawyer at the Niagara Detention Center in August 1994, during a three-way chat between himself, Murray and Bernardo, the tapes weren't mentioned.

The prosecution argued that Murray attempted to obstruct justice by hiding the tapes for 17 months after retrieving them from Bernardo's home

Rosen later testified that when he first saw Bernardo's rape videos he felt an "ethical obligation" to give them to police. "I was stunned by what I saw," Rosen said, recalling his first viewing of the videos in September 1994. He said it was clear in his first viewing of the videos that they showed "direct evidence" that Bernardo was guilty of the abduction, unlawful confinement and aggravated sexual assault of French and Mahaffy.

"There was no evidence of any killing, but clearly these girls were killed and he is a party to homicide," Rosen said. While he said he saw no option but to hand the tapes over to prosecutors, he first tried to use them as leverage to plea-bargain Bernardo a second-degree murder conviction and a chance of parole after 15 years. He testified that he told high-ranking government prosecutors that a first-degree murder trial would be "dreadful" and "devastating" to the victims' families and "humiliating to the memory of their children." He said prosecutors had a good idea of what evidence had been passed to him by Murray and he warned them if "a picture's worth a thousand words then start multiplying it."

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