As the afternoon slips towards somnambulant lethargy, a photo of a glove is projected onto the courtroom monitor.
Spectators are momentarily roused from their stupor.
“It’s not my glove,” insists the witness.
At least one observer thinks: “If it don’t fit, you must acquit.”
But, of course, Dafonte Miller is not the defendant in this Oshawa trial.
And punctilious defence lawyer Michael Lacy is the antithesis of Johnnie Cochrane.
More like the dry economics teacher played by Ben Stein in “Ferris Bueller’s Day Off.” (“Anyone? Anyone?”)
“You know that your DNA was found inside the glove,” Lacy tells Miller
Miller: “How would my DNA be inside those gloves?”
It is a pertinent question, though not the pertinent question.
The gloves were retrieved from a snowbank outside a house in Whitby. Where they may have been dropped in the early morning hours of Dec. 28, 2016, minutes before Miller, then a teenager, now 22, was allegedly viciously beaten by an off-duty Toronto cop and his civilian brother.
Not a chance, says Miller, adamantly.
“I can tell you straight up, sir, I’ve never seen those gloves before.”
“It’s not like you were wearing gloves to break into cars and not (leave) your finger prints behind?” Lacy needles.
Does it matter, really, if those were Miller’s gloves?
Certainly that would support the theory that Miller and a friend, Antonio Jack, were engaged in “car-hopping” that night — climbing into unlocked vehicles, looking to palm whatever valuable articles they could find: phones, wallets, loose money, designer sunglasses, tech trinkets.
Another friend, Bradley Goode, testified earlier this week that was precisely what they were up to, although he left himself out of the delinquency, claimed he was hanging back on the street when his pals climbed into that particular pick-up truck.
But he’s the only witness to have made that claim, which was refuted by his buddies.
It was the sound of the truck doors clicking shut that raised alarms for Michael and Christian Theriault, who’d been smoking and drinking in the garage, according to statements each provided to investigators. They came barreling out of there, the two scamps jumped out of vehicle, and the foot-chase down quiet residential road was on.
The pursuit ended when Michael Theriault, the off-duty cop, and almost immediately thereafter his brother, caught up with Miller and, in police lingo, “a struggle ensued.”
A violent confrontation between two houses further down the street. Miller says he was struck repeatedly with a metal pole.
The Theriault siblings counter that Miller was the one wielding the object, swinging at them and connecting repeatedly.
Except for a scratch on Christian’s hand, the brothers weren’t hurt. Miller, however, was severely injured — orbital bone broken, wrist fractured, and a left eye that essentially exploded and had to be later surgically removed.
He isn’t wearing the prosthesis, leaving just eerie white sclera.
The Theriaults have pleaded not guilty to charges of aggravated assault and obstruction of justice; the allegation is that they impeded the investigation by lying to Durham Regional police who arrived at the scene, around 2:30 a.m., and the Special Investigations Unit, which was not called in or informed about the incident for a long time.
The charges weren’t laid until seven months later and only after Miller’s lawyer, Julian Falconer, contacted the police watchdog.
By which time Durham and the Toronto Police Service were drawn into accusations of a police cover-up.
Oh, there’s also the Theriault paterfamilias, Det. John Theriault — that was his house on Erickson Drive — a 30-year veteran of the Toronto police force who, at the time, worked in the professional standards unit, which investigates police misconduct.
In a complaint to the Office of the Independent Police Review Director filed last year, Miller alleged that John Theriault “repeatedly contacted (Durham Police) investigators to gain information relating to the status of the investigation” and provided false information about injuries suffered by Christian “to aid in the concealment of the crimes committed by his sons.”
Miller was, himself, charged with theft under $5,000, assault with a weapon and possession of a small amount of marijuana.
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The charges were later withdrawn by the Crown.
As Lacy claimed on Tuesday, in an aside, the charges weren’t withdrawn because there was no reasonable probability of conviction, but because “it wasn’t in the public interest to proceed.”
That may be true.
Yet there’s so much in this trial which may or not be true, as asserted by witnesses, as declared in statements to police, and as portrayed in the preliminary hearing last year.
Lacy has been preoccupied with minor inconsistencies and slight contradictions.
“I feel like you’re asking me to remember every single word I said about something that happened three years ago,” Miller complained, mildly.
But that’s what lawyers do, winding witnesses up into a spindle of knotted string or a cat’s cradle of often insignificant oppositional statements, in the details.
Miller, in his buttoned-up white shirt, with a poppy on the lapel of his jacket, and looking out at the courtroom with his one good eye, has been on the stand for two days. During the relentless, if rather pedantic cross-examination by Lacy, he’s remained soft-spoken and unshaken, by the same questions posed over and over again, as if with slight alteration Lacy expects to receive a different answer. Only on a couple of occasions has Miller been induced into exasperation, speaking sharply.
The gist of the thing: Who attacked whom? Who brandished the metal rod? And why was such violence exerted against the young Black man?
The brothers, in their various statements, asserted that they feared for their lives. Yet it was Miller who, after he was tackled by Michael Theriault and forced to the ground, tried to call 911 for help until the phone was wrenched from his hand, Theriault speaking to the dispatcher before flinging it away.
Part of that 911 audio was played again on Thursday.
Michael Theriault can be heard saying: “You’re under arrest.” And again: “Dude, you’re under arrest.”
Miller, who told court that there was never any rustling of that Theriault truck, that two men had stopped him and his friends on the street for no discernible reason, has steadfastly maintained that Michael Theriault had only identified himself as a police officer in that moment, after he’d already been beaten with the metal pole, when he was pinned to the ground, after he’d banged desperately on a homeowner’s door, yelling for somebody to call 911.
“You have the wrong person, man,” Miller says on the tape. He also begs: “Turn me the other way please. Turn me the other way.”
Under questioning from Lacy: “I can hear myself. I can hear him say ‘you’re under arrest.’ I can hear him say it the first time. With all due respect, I never heard him the second time.
“I remember saying, ‘I can’t breathe.’ You can hear my voice gets real low, ‘I can’t breathe’.
“He never told me I was under arrest until I lost my eye. The first time he said that was when I took out my phone …. He never hit me again after I had police on the phone.’’
And he never — Miller was emphatic about this — had the pipe in his hands.
“I never used any weapon on them. I tried to defend myself, obviously, anybody would.
“But I wasn’t able to.”