Dillon Ricky Whitehawk argues that the judge who convicted him of murdeering Keesha Cree Bitternose made mistakes in coming to that conclusion.
Published Jul 16, 2024 • Last updated 6 hours ago • 4 minute read
While judges in Saskatchewan’s top court continue to ponder an appeal of Dillon Ricky Whitehawk’s first two murder convictions, his lawyer has submitted written arguments in an appeal of the third.
The latest was for second-degree murder in relation to the brutal January 2020 killing of Keesha Cree Bitternose. His previous appeal relates to the 2019 drive-by shootings of two men, for which he was convicted on two counts of first-degree murder.
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When 29-year-old Bitternose’s body was examined during an autopsy, it featured so many wounds that the pathologist didn’t even bother trying to count them.
The killing involved members of a Regina street gang, the Indian Mafia, which included Whitehawk and the deceased woman.
At trial, court heard the lead-up to the killing involved rumours circulated within the gang and bad blood.
Whitehawk’s lawyer Thomas Hynes has submitted fleshed out arguments, dated May 27, explaining the convicted man’s assertions that Court of King’s Bench Justice Janet McMurtry made mistakes in coming to the conclusion that he is guilty of second-degree murder.
The written argument, technically called a factum, calls into question three aspects of the judge’s decision.
First, did McMurtry fail to provide sufficient reasons to support the conviction? Yes, argues Whitehawk.
On this point, Whitehawk takes aim at the judge’s analysis of testimony given by witnesses associated with the gang. In particular, he focused on a woman who was at odds with Bitternose but cannot be named due to a publication ban protecting her identity. The witness testified that she was there when Whitehawk carried out the killing, pointing the finger at the convicted man as the murderer.
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She also testified that her participation was limited to locking a door so Bitternose couldn’t escape.
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Early in the factum, Hynes writes of the witness: “She was not just an admitted perjurer, the trial judge necessarily found she had repeatedly lied to the police in the investigation into Bitternose’s murder, she lied at Whitehawk’s preliminary inquiry, and she lied some more at Whitehawk’s trial.”
The factum states the judge failed to articulate her analysis with regard to what are often termed “unsavoury” witnesses. That description is applied to the aforementioned woman who, in the words of Hynes, had “an overwhelming motive to kill Bitternose, but she claimed she just stood by helplessly and watched.”
Whitehawk argues that the judge gave reasons as to why she rejected certain parts of this woman’s testimony but not for why she accepted the woman’s description of Whitehawk as the killer. She was the only witness to testify seeing the convicted man stab Bitternose.
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Whitehawk argues that the judge did not articulate findings regarding credibility, as required, with regard to the key witness and other gang-associated witnesses.
Further, the factum contends that while the judge “anchored” the decision to convict based on things Whitehawk purportedly told others, she failed to deal with the “inconsistencies” in what these witnesses alleged that Whitehawk had said.
“The majority of the statements could even be viewed as exculpatory, rather than inculpatory,” Hynes writes.
Second, Whitehawk argues McMurtry failed to apply the burden of proof, which lies with the Crown in criminal proceedings. The factum states that the judge “required evidence from Whitehawk which showed he was not a co-participant.”
“Further, the trial judge never considered other plausible alternativeness to guilt,” it reads.
The factum suggests that such alternatives could’ve included a scenario in which Whitehawk was a “mere bystander” to the assault, carried out by the woman who pointed the finger at him during trial.
Finally, Whitehawk argues that the murder conviction is simply “unreasonable.”
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Once the judge had “discarded” the significance of certain forensic evidence, her reasons for conviction “rested entirely on the credibility and reliability” of gang-associated witnesses.
“No properly instructed trier of fact could find those witnesses to be credible or reliable to the required standard of proof on any reasonable view of the evidence,” Hynes writes, suggesting it is “apparent” from McMurtry’s comments that she did not find these witnesses sufficient in this sense.
“The trial judge’s statements support the only reasonable conclusion available: that Whitehawk was probably guilty of participating in Bitternose’s murder, but there was simply too little credible or reliable evidence to be certain of his guilt.”
Whitehawk asks the Saskatchewan Court of Appeal to quash his conviction and enter an acquittal or, in the alternative, order a new trial.
The Crown has not yet filed its own written arguments in response, and no hearing date has been set.
The Crown filed its own appeal on the matter, taking the position that Whitehawk should’ve been convicted of first-degree murder, as he was originally charged.
bharder@postmedia.com
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