New trial ordered for mom

The province’s highest court has ordered a new trial on seconddegree murder for a Calgary mother who strangled her rebellious 14-year-old daughter with a head scarf four years ago.

Alberta Court of Appeal Justices Peter Martin, Ellen Picard and Patricia Rowbotham were unanimous that the trial judge erred in law when he acquitted Aset Magomadova of second-degree murder in the death of Aminat on Feb. 26, 2007, and convicted her of manslaughter.

Court of Queen’s Bench Justice Sal LoVecchio, following his verdict, suspended the sentence of Magomadova, 41, last July and placed her on probation for three years with conditions including counselling.

Martin, who read the appeal decision on Wednesday, said the trial judge’s factual findings were sound when he rejected self-defence, but he then did not properly deal with the issue of why the mother killed her daughter that would reduce the case to manslaughter.

"(Magomadova) told us that she strangled her daughter because she was afraid of Aminat . . . a clear case of self-defence," said Martin. "She offered no other explanation, other than defending herself against a knife attack.

"The trial judge ruled (Aminat) was not armed with a knife. His reasoning was clear and supported by the evidence. On the facts of the case, having rejected self-defence, the trial judge refused to address the prin-ciple that a sane and sober person is responsible for the nature and consequences of their actions."

Trial Crown prosecutors Mac Vomberg and Sarah Bhola, who had sought a murder conviction, later argued for 12 years in prison on manslaughter.

Defence lawyer Alain Hepner, who did not conduct the trial but took over for sentencing, said his client and her family knew this appeal outcome was a possibility.

"They were fully aware and we’re going to march on," he said. "She was upset because going through the process was stressful. Now, having to do it a second time just doubles that stress," Hepner said.

"Her support system is still in place, her sister was there for the appeal and we’ll just have to deal with it."

Hepner said he has been asked to handle her case for the retrial.

He said he expects the new trial to be held in 2012. The case will be back in court on July 7, to set a date.

Crown prosecutor Goran Tomljanovic made it clear from his argument before the appellate court that he did not believe it was an unjust verdict, but that the judge made findings of fact then did not properly apply the law to the facts.

"There’s no question this was a 14-year-old girl who was out of control, violent, destructive and provocative to those in authority, was abusing drugs and into prostitution," Tomljanovic told the three-judge panel. "The victim and the accused had a history of conflict that stretched over many months. There is no issue that the accused killed her daughter or how she did it: she strangled her with a scarf."

However, Tomljanovic said the forensic pathologist’s evidence clearly showed a victim would lose consciousness in some 15 to 30 seconds and there must be a minimum two to five minutes of constant pressure to cause the death.

Having ruled out self-defence by Magomadova, who testified her daughter had come at her with a large knife in the sewing room, Tomljanovic said there is no explanation why she would continue to apply pressure to the scarf for such a long time after the girl was unconscious.

The only reason, Tomljanovic said, would be she intended to kill the teen or at least cause bodily harm that could lead to death.

Magomadova, who has been on bail since shortly after her arrest, will remain free until her next trial.

Calgary Herald