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9 The First Trial

When Robert Badgerows frst-degree murder trial began in a
Hamilton courtroom on Jan. 16, 2001, the court had already de-
cided there was crucial information the jury would not hear.
Crown attorney Joe Nadel badly wanted the jury to know Bad-
gerow was also facing charges of attempted murder and sexual as-
sault in the screwdriver attack on Debbie Robertson, charges that
would not go to trial for another seven years.
During legal arguments made in the absence of the jury, the
Crown suggested repeatedly that Badgerow had slipped through
the fngers of police 20 years earlier because of a shoddy investiga-
tion, and that jurors in this trial would not have a complete picture
of Badgerow with such a crucial piece of the puzzle missing.
Regardless, the presiding Superior Court Justice, Tomas Lof-
chik, ruled the jury would not be told about Robertson, explain-
ing: Tere is a serious question as to whether the accused was the
attacker there.
Lofchik happened to be the same judge who, in 1999, presided
over the trial of James Wren, the panty-stealing rapist whose string
of attacks had drawn detectives attention to the other series of sex-
ual assaults that included Dianes murder.
Te jury would also not hear about the 1998 conversation in
which Badgerow told his brother-in-law Kovacsik that he once
had a sexual encounter with a woman in the Fiesta Mall parking
lot. Nor would the jury hear that the anonymous 911 call made just
days afer Dianes death was possibly made from a phone booth
metres away from Badgerows work station at Dofasco.
Nadel, an experienced Crown prosecutor who would go on to
become an Ontario Court justice, argued the frst-degree murder
case. He was assisted behind the scenes by an articling student
with an uncanny recall of detail named Cheryl Gzik, who would
stay with the case to the present day. Gzik began her working life
as a social worker with a Childrens Aid society and later entered
Osgoode Hall law school. She continued to work on her masters
degree in social work as she studied law.
A lot of what she did as a court articling student was photo-
copying, and Gzik used the opportunity to read, study and memo-
rize as many details about the case as she possibly could.
Te Badgerow trial would turn out to be a big factor in her en-
suing career path. At that point, I loved the work. I knew I wanted
to remain as a lawyer instead of going back to social work. . . . I can
advocate stronger in the courtroom as a lawyer than when I was a
social worker.

Badgerow had hired two Toronto lawyers to represent him, Leo

Adler and Boris Bytensky.
Adler, now 66, is one of the highest-profle criminal lawyers in
the province.
Adler says he was approached by Badgerows family soon afer
his arrest because he had just fnished one of the frst major DNA
cases in Ontario. Indeed, Adler is considered one of Canadas lead-
ing DNA legal experts, consistently challenging the notion that
DNA evidence is infallible.
DNA profling isnt perfect, he once told the Toronto Star.
Like anything else, it depends on people, and people arent perfect
. . . . Its a multi-step, complex process, and there can be problems
at every step of the way.
Te other half of Badgerows defence team was the amicable
Boris Bytensky, who was just 31 when he joined Adler in defend-
ing Badgerow.
Badgerows lawyers with his les (Photo: Gary Yokoyama/Torstar News Service)
Te two continue to represent him now.
At the time of his frst trial, Badgerow was 42. Te media cover-
age surrounding his arrest had been intense, and people focked to
the courtroom daily to watch the 20-year-old case unfold.
Te trial would last 54 days, hear from 71 witnesses and fle 122
Te passage of time was a critical issue during the proceedings.
Some witnesses had died, and memories had faded or warped over
the years.
For instance, John Temple, who was 12 when he found Dianes
body, would testify she was wearing a white nurses uniform with
white stockings and white shoes when he saw her. But that simply
wasnt true. Likely his memory had muddled his own experience
with the fact she had been a nurses assistant.
On the opening day of the trial, the Crown and defence laid out
their cases for the jury.
Te Crowns argument was that Diane Werendowicz lef Ma-
larkeys bar on June 19, 1981 and walked part of the way home be-
fore being attacked by Badgerow, who dragged her into the ravine,
raped her and then drowned and strangled her.
Te defence countered that the only thing Badgerow was guilty
of was infdelity.
Ironically, though Adler was initially approached by Badge-
rows family because of his reputation as a DNA expert, the de-
fence strategy ultimately had little to do with DNA.
Adler and Bytensky conceded that their clients DNA was found
inside the murder victim but they argued it was the product of
consensual sex and that Diane had lef her encounter with Badge-
row alive.
Someone else murdered Diane, Badgerows defence team ar-
gued. Tey even ofered up an alternate suspect Brian Miller,
the convicted serial rapist who had lived in Dianes apartment
building at the time of her homicide.
Te defence subpoenaed Miller to the Badgerow trial. Miller,
whose father had just died, was brought from prison in Kingston
to the Hamilton-Wentworth Detention Centre. On the day of his
fathers funeral, Miller sat in a cell waiting to be called to testify.
He was not allowed to attend the funeral, he says, because of the
subpoena. In the end, he was never called to the witness stand.
Te scenario of what happened here fts Brian Millers meth-
odology of sudden, irrational violence and sexual molestation, of-
ten unaccompanied by ejaculation in the vagina, Adler told the
jury. Tere is nothing in what happened to Diane Werendowicz
that couldnt have been done by Brian Miller.
Te gritty details of the evidence were ofen difcult for the jury
to sit through.
With regard to Badgerows semen, found in Diane and in the
crotch of her blue jeans but not in her underwear, Nadel argued
that this was because Badgerow had raped her in the ravine and
when he was fnished, she had hastily pulled on her pants but not
her underwear in her desperation to escape.
Te defence said that afer Diane had sex with Badgerow in his
car, she put her underwear in her purse or her pocket and started
out for her walk home.
Te jury also heard complicated scientifc testimony about Di-
anes blood-alcohol level in relation to her time of death from Dr.
Daryl Mayers, a forensic toxicologist from the Centre of Forensic
Sciences. He told the court that a peak blood-alcohol reading is
reached about 12 minutes afer the last drink. Tat is the same
amount of time roughly that it would have taken Diane to walk
from the bar to the ravine.
At the time of her death, her reading was 117 milligrams of
alcohol in 100 millilitres of blood.
Tat seemed to contradict evidence from the women she was
with that night, who said she had at least fve and probably six
beers between about 9:20 p.m. and midnight. Given that Diane
weighed 132 pounds, Mayers would put her peak alcohol level well
in excess of 150 milligrams.
If she lef the bar just afer midnight for the 10- to 15-minute
walk home, her time of death could have been as early as 12:30
a.m. But with a reading of 117 at 12:30 a.m., she would have had to
consume less than three beers. If she had six beers, her level could
not have fallen to 117 until 3 a.m.
Do you really believe, Adler asked the jury, that her rape in
the woods lasted roughly two hours before she was fnally killed?
All without any prolonged screaming, without any defensive in-
juries, without any injuries to her genitalia and no sexually moti-
vated injuries?
Tere is no way that grass stains, puncture wounds, pressure
points, bruises, abrasions, injuries, scrapes, fngernail scratch-
es, lacerations and a host of other markings, redness or swelling
wouldnt and couldnt have been noted somewhere on the body.
Nadel challenged a forensic pathologist who said there were no
visible signs of rape on Dianes body. A woman can be raped with-
out showing visible signs of physical trauma, the Crown argued.
Ten the judge ruled the jury could not be told the 911 call
may have come from a phone booth at Dofasco because no records
could be found by Bell or the police to prove the call had been suc-
cessfully traced. Tey would have to rely on voice-identifcation
evidence only to decide if Badgerow was the caller.
Several journalists were called to the stand to testify about what
information had been reported on Dianes murder prior to the 911
Former Hamilton Spectator summer intern Hank Daniszewski
said that everything he knew about the case, he put in his story
published on June 22, 1981. He denied hed been told anything of
the record or that hed then leaked that information out into the
community, creating the possibility that the 911 caller might have
heard those leaked details somewhere.
In Daniszewskis story, police said Diane may have been sexu-
ally assaulted. So it is possible when the 911 caller said she was
raped, he was extrapolating from the newspaper story.
Police had told Dianes father immediately afer her body was
discovered that they believed she had been strangled. Tat infor-
mation was refected in Te Spectator story and could have fed into
the 911 callers depiction of the scene. Te story also contained a
detailed description of what Diane was wearing, which was similar
to the information relayed during the 911 call.
Badgerow, his dark hair shorn short and neat, his face clean-
shaven, took the stand in his own defence. He was calm and com-
posed, even when being cross-examined by Nadel.
I have told no lies, Badgerow said. I may be guilty of a lot of
things, especially fooling around on the women I love and hurting
people. But I didnt kill anybody. I have no lies about that. I am not
a killer.
Despite this assertion, he had to admit he had lied, at least in
one respect. Te night Badgerow was arrested, Staf Sgt. Hrab
showed him a photograph of Diane Werendowicz. He denied ever
having seen her before or knowing who she was. He was told his
DNA matched the semen found in her body. His response was that
he did not have an explanation and it would be up to his lawyer to
answer any more questions. But it turns out that at least 10 months
before his arrest, he had seen Dianes picture in the media and fg-
ured she was the woman he had sex with on June 19, 1981. He even
told co-workers that he might be questioned by police.
I put two and two together through the reports in the newspa-
per and the events that happened in 81, from picking up the girl
in the bar, he told the jury. By putting two and two together, I
assumed it was my semen.
But he also said he didnt know it was his semen for certain
until Hrab told him so.
In his closing argument, Adler told the jury that police misun-
derstood the implications of the DNA match.
Te role of DNA science was only to identify the man who
had sex with Diane Werendowicz and that this person was not
necessarily the killer. Te misconception of what the science of
DNA can prove, and what it cannot prove, has haunted this case
from the start and has allowed Brian Miller to avoid being tried
for this murder.
Adler and Bytensky needed to convince the jury there was a
possibility Badgerow could have had consensual sex with Diane
and someone else could have murdered her soon afer.
Te jury went into deliberation on April 5.
It took them eight days to reach a verdict, the longest a Hamil-
ton jury had taken to come to a decision until then.
Te courtroom was packed as the jurors took their seats just be-
fore 5 p.m. on Friday, April 13, 2001, just shy of 20 years since Di-
ane Werendowiczs murder. Good Friday. Te strain and weight of
their duty had taken its toll. Some jurors held hands and trembled.
Some quietly cried.
Tey had found Robert Badgerow guilty of frst-degree murder.
Te courtroom silence was shattered by the mournful wail of
Badgerows wife, Cheryl, who was surrounded by friends and fam-
ily. Te couples boys were not in the courtroom.
Dianes brother Steve was present, clutching his wife Lorraines
hand as the verdict was read in. Moments later, on the courthouse
steps, Steve would tell the media scrum: Never in my wildest
dreams did I believe I would live to see my sister vindicated. My
sister Diane Werendowicz and I would like to thank the jury for its
just and fair verdict. My little sister Diane can now rest.
Diane and Steves mother, Hilda, had died a year earlier in Brit-
ish Columbia. She lived long enough to know Badgerow had been
arrested for her daughters murder, but passed away before he was
convicted. Dianes father, Stefan, by now 81 and living in B.C., re-
ceived a phone call afer the verdict to tell him justice had fnally
come for his daughter.
Before handing down the automatic sentence of life in prison
with no parole eligibility for 25 years, Justice Lofchik asked the
convicted killer if he had anything to say.
Badgerow stood and addressed the court.
I said it at the start and I say it now: I did not commit this crime.
Someone did lose their life, but I am not the one who caused that.