Hart judge concerned about spectre of seizure: recording

The judge in the Nelson Hart murder trial was concerned that banning the public from a courtroom for fear of triggering an epileptic seizure could give weight to Hart's defence, a recording of a closed court session shows.

Newfoundland Supreme Court Justice Wayne Dymond, who has been presiding at Hart's trial in Gander on two counts of first-degree murder, rejected Hart's 11th-hour appeal to testify in closed court.

Dymond heard Hart's argument on Monday morning in an in camera session. The recording was released Tuesday, while a sequestered jury was deliberating on whether Hart murdered his twin three-year-old daughters, Krista and Karen, in 2002.

The defence called its witnesses on a single day last week. Hart, who had been expected to testify in his own defence, was not called at that time.

Therecording of Monday's session shows Hart told Dymond that he becomes frustrated and confused in front of crowds, and said that he worried that stress would cause him to have a seizure.

However, Crown prosecutor Mark Linehan pointed out that Hart had already testified twice in open court: at a 2005 bail hearing and then at a subsequent preliminary inquiry.

Dymond told Hart he wanted to give him a full opportunity to tell the jury what he wanted to say, but said the media has a right to report on proceedings.

Dymond said he was concerned that even closing the court because Hart might have a seizure could give more weight to defence evidence.

The cornerstone of the defence is Hart's claim that he had a seizure on the day that his daughters drowned in Gander Lake, and that their deaths were accidental.

Hart had originally told RCMP that one of his daughters had fallen in the water, and that he left the other while he drove to Gander to get help. He later changed his account to say he had had a seizure while at the lake.

Dymond— who insisted on an open session— offered several options to Hart, including placing a screen that would partially block the view from the public gallery. Dymond said a physician could stay in the courtroom during Hart's testimony, and that Hart could take a break at any time.

In the end, Hart decided not to give evidence.

The jury was sequestered on Monday evening. The trial began Feb. 27.