JUSTICE

A question of guilt

A sensational murder case could be reopened

CHRIS WOOD April 18 1994
JUSTICE

A question of guilt

A sensational murder case could be reopened

CHRIS WOOD April 18 1994

A question of guilt

JUSTICE

A sensational murder case could be reopened

CHRIS WOOD

There is no mystery at all about how Jeannette Kelly died.

Her life ended when she struck the ground at the foot of Toronto’s posh Palace Pier condominium complex on the first balmy Sunday of spring, 1981, the impact fatally crushing her upper spine.

What remains shrouded in speculation is how the attractive airline reservations agent began her fatal fall from a balcony 17 floors up. Nearly two years afterward, a close friend provided one answer: Dawn Taber told police that she had watched Kelly’s husband throw his wife to her death.

Her account, repeated at Patrick Kelly’s 1984 first-degree murder trial in Toronto, sent the former RCMP officer to prison for life—even as he insisted that his wife’s fall was accidental. But now Kelly’s claim of innocence is attracting new attention. And the reason is fresh disclosures from a startling source: Dawn Taber. Says Taber today: “I did not see Patrick Kelly drop his wife off their balcony. That was a lie.”

Taber still says that she overheard a violent quarrel between the couple. But bolstered by her partial recantation, Kelly’s lawyers are seeking a new trial for their client. If they are successful, the result would reopen one of Canada’s most spectacular criminal cases. Prosecutors at Kelly’s first trial told the court that the former undercover drug agent was living a life of conspicuous luxury and marital infidelity at the time of his wife’s death, supporting himself by smuggling cash for shadowy South American clients. A second trial would be certain to resurrect doubts about Kelly’s version of events, even as it revealed new holes in the prosecution’s case. Renewed scrutiny may also shed a harsh light on the police tactics that Taber now claims induced her, after 20 hours of interrogation, to provide her damning testimony. At the same time, Tabor’s insistence that she did not tell the truth in 1984 could open her to criminal

charges, a risk that she says she accepts if it will help reverse what she calls a “miscarriage of justice.” In a signed affidavit executed last month and obtained by Maclean’s, Taber declared: “The possible legal consequences are not as important as my own peace of mind.”

For Patrick Kelly, the stakes are higher still. He hopes for eventual freedom after 11 years of imprisonment made even more difficult by his former occupation. Despite official assurances that the former Torontobased undercover investigator would not be confined with the same Ontario and Quebec felons that he once helped to convict, Kelly was initially placed in Kingston Penitentiary, widely regarded as one of Canada’s most dangerous prisons. “The first attempt on my life was made within

days,” he recalls. ‘They were placing bets on how long I would live.” (He is now suing Corrections Canada for more than $600,000 in damages for placing his life in danger from fellow inmates; that case goes to trial in Vancouver next month.)

Kelly survived 20 months at Kingston and is now housed in the comparative comfort of the medium-security William Head Institution, located on a picturesque peninsula 40 minutes west of Victoria. But prison life has visibly aged Kelly. His once-dark hair is fully grey, and the youthful face pictured in old photographs is now deeply lined. Despite his relatively relaxed surroundings— Kelly spoke to Maclean’s in a prison boardroom and later personally escorted his visitor to the institution’s gates—he is eager for his ordeal to end. “I’m looking forward to getting this over with,” he says.

Danger, though, was a familiar companion to Kelly even before his conviction. Born in 1949 in Toronto, Kelly joined the RCMP in 1970. Less than two years later, he was assigned to work as an undercover agent, posing as a highflying international smuggler trading in heroin and cocaine. In 1975, Patrick and Jeannette Kelly were married, just three months after the wedding of their close friends John Hastey, also an RCMP officer, and Dawn Taber. But in 1980, Kelly left the force under a cloud: he was charged with setting fire to his own home two years earlier in order to collect insurance, an accusation that was later dismissed at a preliminary hearing. By then, he had already established himself in civilian life as an investment consultant.

But Kelly also had a covert second source of income that helped pay for his frequent extramarital affairs, for international holidays, a silver Porsche and the luxury condominium on the Toronto waterfront that he and Jeannette moved into after their house burned. After a decade of investigating international smuggling, Kelly had turned to the same business himself, albeit in a form that he defends: secretly carrying large sums of cash out of South America on behalf of wealthy individuals and the Roman Catholic Church. “If they wanted to move their assets,” he recalls, “I was available for 20 per cent of the asset.” But, insists the former drug agent, “I did not join the other side. These were legitimate folks who wanted to flee South America for one reason or another.”

Kelly also contends that relations with his

wife were improving in the spring of 1981. Jeannette, he says, spent much of the morning of March 29 packing for a trip to Italy, where she planned to attend a language school. Taber, he maintains, did not visit that day, as she has claimed, around 12:30 p.m. Kelly says that around 3 p.m., Jeannette took a stool from the kitchen, where he was preparing tea, and went out onto the condominium’s balcony to look for an annoying rattle in the flashing at the edge of the overhanging balcony one floor above. He says that he heard a noise and rushed out towards the balcony. “As I rounded the corner, I saw Jeannette falling backward. I ran to the edge of the balcony in an attempt to save her. I actually had my hands on her.

But by that time she was already moving out and down.”

Less than three minutes after the fall, witnesses later testified, Kelly was at his wife’s side—crying, shaking and showing signs of shock.

Within a week, however, both Kelly’s own actions and Taber’s intervention began to cast doubt on his version of events. Kelly flew to Hawaii with a girlfriend on a vacation that they had planned to coincide with Jeannette’s absence in Italy. (Kelly and the girlfriend would later marry, separating again after his conviction.) Taber, meanwhile, contacted police within days of her friend’s death to tell them of her belief that Kelly had killed his wife. She said nothing, however, about having been in the couple’s apartment that day.

Police would not arrest Kelly for nearly two years. In that time, he and his new wife moved to France; Taber moved back to her native United States, where she had grown up near the U.S.-Canada border in Maine. Taber, however, kept in touch with investigators and, in February, 1983, one of them travelled to New Hampshire for interviews; a week later, Taber flew to Toronto. On March 3,

1983, police arrested Kelly, back in Canada on vacation, as he drove near Lindsay, Ont.

At his trial, Taber repeated the account that she had given investigators. She had gone to the Kellys’ apartment, she said, to make up after a quarrel with Jeannette the previous autumn. Waiting in the couple’s den to accompany Jeannette to the airport, Taber testified, she overheard an argument in which Jeannette taunted her husband with her refusal to contemplate a divorce. “I heard a very, very loud scream,” Taber said. “Then I heard the sound of somebody hitting somebody. Then nothing. I walked out to see what was going on. Jeannette was on the floor and

Patrick was bending over her, picking her up. He took Jeannette to the balcony and dropped her over the edge.”

That account proved irresistible to jurors. At the end of the seven-week trial, they deliberated for only 13 hours before finding Kelly guilty of first-degree murder. Ontario Supreme Court Judge John O’Driscoll, in turn, imposed the automatic sentence for that crime: imprisonment for life with no eligibili-

ty for parole for 25 years. Declared Kelly: “Now I know how Donald Marshall felt.”

In fact, although legal appeals against his conviction failed, Kelly may now win a new trial at least in part through the efforts of Lunenberg, N.S.-based writer Michael Harris, the author of an influential book about Marshall, the Nova Scotia Micmac wrongly imprisoned for 11 years for a murder that he did not commit. Asked by Kelly in 1986 to investigate his conviction, Harris sought out Taber, who initially confirmed her testimony at the trial. But during numerous telephone conversations over the following years, Harris says that he gathered the impression that Taber was disturbed by something about Kelly’s conviction. What that was became clear only recently. “In September,” says Harris, “I got a call from her, saying, ‘I lied.’ ” Taber, now a front-desk clerk at a Maine hotel who recently married for the third time, has since confirmed her new story in two signed affidavits, as well as in an interview with Maclean’s. She continues to maintain that she visited the Kellys’ condominium on the day of Jeannette’s death. She also says that she overheard an argument and a blow, and that she saw Jeannette Kelly “lying

motionless on the floor with Patrick standing over her.” But, critically, in an affidavit signed on March 11, Taber declared: “I now know I did not see Patrick Kelly drop his wife off their balcony. I now know that was a lie induced through a process of pressure and fear”—a process, she says, carried out by investigators.

With Taber’s recantation in hand, Kelly’s lawyers have now begun preparing an appeal to Federal Justice Minister Allan Rock under Section 690 of the Criminal Code. That section gives Rock wide powers to order a new trial—or even a full pardon—for convicts who have exhausted all other routes of appeal, in instances where a miscarriage of justice may have occurred. It was last invoked to free David Milgaard from prison in 1992, nearly 23 years after his conviction for a murder that he has always denied committing. Says Clayton Ruby, the Toronto defence lawyer who is acting for Kelly: ‘There was only one I eyewitness to the crime. £ That witness now says what z she testified never hap1 pened. I think he’s entitled I to a new trial.”

1/5 A pardon for Kelly seems unlikely; much more possible is a new trial. And Taber’s retreat from the crucial assertion that she witnessed Kelly murdering his wife is certain to undermine the credibility of any future testimony she may give. “The whole Crown case came down to one person: Dawn Taber,” says Harris, who is writing a book about Kelly that is due for release next year. “How can you now say any part of what she said is true?”

In fact, Taber herself now appears to harbor doubts even about those parts of her story that she has clung to. Asked by Maclean’s whether she could be certain that she was in the Kellys’ apartment on the day of Jeannette’s death, she replied, “I have questioned that.” And in a telling conclusion to her most recent affidavit, Taber states that “at this point, I cannot distinguish with certainty what I learned” from the police “and what I really know of my own knowledge and memory.”

Kelly is aware that his account of his wife’s fall is vulnerable to charges of implausibility: he has spent much of the past decade mustering expert support for its theoretical possibility. At the same time, Taber’s reversal— under a system in which innocence is presumed and guilt must be proven beyond reasonable doubt—should give Rock reason to expedite his review.

CHRIS WOOD in Victoria

‘The Crown case came down to one person:Taber’