Defence lawyer says police media release was 'prejudicial' to ex-Mountie accused of murdering Braden Herman

A Saskatoon defence lawyer is questioning the fairness of a media release the Prince Albert Police Service recently sent out about its investigation into the death of Braden Herman. 

Brian Pfefferle is not representing Bernie Herman, but has been following the case and says the release went too far.

Bernie, a 35-year veteran officer who last served with the Prince Albert RCMP's traffic unit, has been charged with first-degree murder in Braden's death. The two men shared the same last name, came from the same region of northern Saskatchewan and knew each other, but were not related. 

Prince Albert police's third media release about the case was issued on May 17, five days after Bernie, 53, was charged in the death of Braden, 26. Bernie has since resigned from the RCMP.  

The May 17 release said the police service was committed to a thorough and transparent investigation, and went on to disclose several early findings in the investigation, including:

• Bernie allegedly phoned a co-worker and told them he had killed someone. The release described it as "disturbing comments." 

• Bernie allegedly went to the co-worker's home and was taken into custody.

• Bernie allegedly told police where they could find Braden's body, which was found in a wooded area within Prince Albert city limits.

• Braden appeared to have been shot.

• Bernie's service pistol was seized along with other use-of-force equipment, but "the weapon used in the offence cannot be confirmed at this time."

• While Bernie was allegedly not on duty "at the time of the offence," he allegedly left work in full uniform, including wearing his duty belt. 

• Bernie and Braden apparently knew each other for several years. 

• Investigators were continuing to collect statements to gain insight "not only on the nature of their relationship, but also on the possible motivation for the offence."

Pfefferle, a Saskatoon-based defence lawyer, said the release contained too much information.

"Considering that when someone is facing a charge of murder there is a presumptive jury trial, one cannot help but consider releasing details of the alleged offence in this fashion as prejudicial to the defence," Pfefferle said. 

The release could potentially contaminate the jury pool or eliminate potential further avenues of investigation, Pfefferle said.

A spokesperson said the Prince Albert Police Service had no comment.

Brad Mitchell, Bernie Herman's lawyer, also declined to comment.

Pfefferle said the release's inclusion of details about Bernie's alleged remarks to his co-worker are problematic. 

"The presumption of innocence applies to us all equally, no matter our employment. If he gave a statement to a co-worker — a police officer — his alleged statement is presumptively inadmissible and must be proven beyond a reasonable doubt prior to admission at trial," Pfefferle said.

"Therefore the police service may have released presumptively inadmissible evidence to the public."

Pfefferle said he has represented over 30 people against homicide charges. 

"Not one of those cases had details released with this much minutia," he said. 

2 retired officers tapped to monitor investigation

Meanwhile, new details about the degree of oversight over Prince Albert police's investigation of the case have been confirmed. 

In addition to Prince Albert Police Service investigating Braden Herman's death, two retired police officers — one formerly with the Saskatoon Police Service, one formerly with the Regina Police Service — have been tapped by the Ministry of Justice to act as "investigation observers."

Observers are tasked with independently monitoring police investigations and submitting a confidential report to the provincial Ministry of Justice. Typically, only one investigation observer is appointed.

"The primary factor in assigning two investigation observers to [the Herman] case was the severe nature of the allegations against an off-duty member of the RCMP," a spokesperson for the Ministry of Justice said. 

Last fall, the ministry announced proposed changes to Saskatchewan's police oversight system. One of those changes would see two investigation observers appointed if the victim was Indigenous, with at least one of the observers being of First Nations or Métis ancestry. 

The Ministry of Justice did not confirm whether that's what's happened with the Herman case. 

Braden Herman was from the Clearwater River Dene Nation and Bernie Herman is from the neighbouring community of of La Loche. 

A new, independently-run Serious Incident Response Team (SIRT), which will take over the role of investigating police-involved incidents involving death or serious injury, is expected to launch in Saskatchewan this fall.

As part of that change, a summary report on investigations is expected to be released to the public within three months of a SIRT investigation being completed.

CBC News asked if that would retroactively apply to the Herman case, even if the SIRT has yet to launch. 

"The investigating police service will determine whether to share a report at the conclusion of the investigation," the ministry spokesperson said.