VANCOUVER – A new trial has been ordered for an RCMP officer convicted of aggravated assault for shooting a suspect during a traffic stop on Vancouver Island.
The B.C. Appeal Court ruled the lower court judge made a mistake in excluding evidence from an expert witness when he determined Const. David Pompeo was guilty.
In a unanimous ruling issued Friday by a three-member panel, the judges said the lower court judge had taken an active role in questioning witnesses during the trial, compromising the appearance of fairness.
“Given that the judge, himself, developed theories that were detrimental to the defence, and that he elicited considerable evidence that he used to support the conviction, the appearance of trial fairness was, in my opinion, compromised,” wrote Justice Harvey Groberman.
In December last year, provincial court Judge Josiah Wood said the officer appeared to be a responsible member of the RCMP but he showed poor judgment when he shot William Gillespie in September 2009.
The trial heard that Pompeo, who worked in the Duncan, B.C., detachment, was with another officer when they began a brief vehicle chase after Gillespie. Pompeo said they were trying to stop the man for driving while prohibited.
Both officers pulled out their guns at Gillespie and his passenger, and Pompeo told his trial he shot the man because he thought he was reaching for a weapon in his pocket.
Pompeo claimed his use of lethal force was necessary to save his own life.
Wood sentenced Pompeo to two years probation and 240 hours of community work, saying a more severe sentence, such as jail time or a firearms prohibition, would have caused Pompeo to lose his job.
The appeal court judges agreed with the officer that the judge’s approach to the case was “problematic.” The appeal court said Wood engaged in lengthy questioning of one of the key witnesses.
The appeal court said the judge erred in finding that one of Pompeo’s witnesses, a police officer for 12 years, wasn’t qualified to be an expert. They said the judge appeared to have rejected the officer not on the basis that he lacked expertise, but that another officer and witness had more expertise.
“I am not persuaded that the error is a harmless one,” Groberman said in his ruling.
The judges ruled that they would allow the appeal on that issue alone. But they also noted the judge seemed to take an active role in developing evidence, from which he discounted the officer’s claim that Gillespie appeared to him to be fleeing from police during the vehicle chase.
“The trial judge’s interventions in the case before us were extensive and frequent. While I do not call into question the impartiality of the judge, his active participation in the trial went well beyond the norm,” the appeal judge said.
The conviction has been set aside and the court ordered the case go back to provincial court for a new trial.