'Very, very troubling case': Court ponders new trial for convicted murderer Marissa Shephard

A panel of three justices from New Brunswick's court of appeal is considering whether to order convicted murderer Marissa Shephard a new trial. 

Shephard, 23, was sent to prison in June 2018 for the death of her friend Baylee Wylie. A jury found her guilty of first-degree murder and arson.

During a drug-fuelled night of partying, Wylie was bound to a chair, his face was covered in plastic wrap, and he was beaten and stabbed with multiple objects, suffering more than 140 wounds. 

Just a few days after her conviction, Shephard appealed the decision, and the Court of Appeal held a hearing in June. 

But on Wednesday the court held a second hearing to raise questions about whether Shephard got a fair trial. 

''What we have is a trial where repeatedly prejudicial evidence is put before the jury, and the judge has to go in repair mode,'' said Justice Ernest Drapeau, calling it a "very, very troubling case.'

''At one point in time, it's just too much.''

'We're not killing anyone else'

Chief among the justices' concerns was the handling of a key statement made by Shephard herself during testimony in her own defence.

She testifed that Tyler Noel, who was also convicted of murder, had suggested going after two other friends who had been at the house the night Wylie died. She said she told him, 'No, we are not killing anyone else,Tyler.'

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The Crown used the statement in its final submission to the jury, arguing it was a flat-out admission of guilt. 

But the justices took issue with that, saying the Crown had an ethical obligation to cross-examine Shephard to clarify what she had meant by that, which it did not do.

''It's plain out inadmissible,'' said Drapeau.

''Why are these repeated attempts at prejudicial evidence being made? You wonder about the fairness of the process.''

Prosecutor Kathryn Gregory argued the statement by Shephard was a slip, consistent with the Crown's position she had been involved in the murder.

''That could be highly telling,'' said Gregory.

But chief justice Marc Richard said perhaps it was a Freudian slip, where Shephard meant to say 'you' instead of 'we,' and the statement, without any cross-examination, had been taken out of context.

'Preposterous' and 'wholly inappropriate'

The appeal justices also said they were bothered by a number of things Shephard's defence team did during trial.

Among them, the fact her own defence repeatedly referred to her testimony on the stand as a "story."

''This is preposterous,'' said Drapeau. ''You never tell the client to tell their story. You ask the client what happened.''

Drapeau said the word should never be used by lawyers, as it could suggest the recounting of fictitious events, therefore being prejudicial to the jury.

''This is wholly inappropriate,'' he said.

As the justices were going over their concerns, Baylee Wylie's mother, Amanda Wylie, sitting in the first row, sighed loudly, at times looking down, shaking her head.

Drapeau also said he was "baffled to no end" about some of the evidence, judged highly prejudicial, that was put to the jury.

This included information that had been ruled inadmissible earlier in the trial but that the defence did not object to when it was brought up before the jury, as well as the testimony of a prison mate, which was considered irrelevant to the murder.

Recording shouldn't have been included

The justices also felt the tape of Marissa Shephard being interviewed by police should not have been admitted as evidence, because it brought nothing to the table, except perhaps prejudice to the jury.

Shephard had sought legal advice and been instructed not to say anything.

The tape consists of police asking a number of questions about the murder, and Shephard not answering.

''It's nothing but a highly prejudicial collection of statements by police,'' said Drapeau, suggesting Crown and defence worked hand in hand to have it admitted.

Richard questioned at what point does the accumulation of missteps by the defence constitute grounds for a new trial.

''Are we there?'' he asked.

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The appeal justices reserved their decision on whether to grant Shephard a new trial.

'Tortured to death'

Shephard is serving a life sentence with no chance of parole for at least 25 years.

In sentencing Shephard, Justice Zoël Dionne said Wylie was "quite simply tortured to death."

Tyler Noel pleaded guilty in May 2017 to second-degree murder and arson with disregard for human life and is serving a life sentence with no chance of parole for 16 years.

Devin Morningstar was found guilty in May 2016 of first-degree murder and arson with disregard for human life in Wylie's slaying. He unsuccessfully appealed in June 2017 and is serving a life sentence with no chance of parole for 25 years.