This is an excellent piece of behind-the-scenes investigative journalism by veteran
Clare L. Pieuk
Mark Stobbe was found not guilty of murdering his wife, Beverly Rowbotham --
but well before the trial even began, several out-of-province prosecutors
figured there wasn't even a case against him.
In fact, while they expressed suspicions, four Alberta-based Crowns didn't
believe the evidence was strong enough to charge Stobbe with the slaying in the
first place. At least that was their opinion after looking at the same evidence
the jurors would see later during the two-month trial and testimony from more
than 80 witnesses.
And the prosecutors would have recommended Manitoba not charge Stobbe because
they believed RCMP investigators hadn't built a strong enough case. That
explains why the murder case was in limbo for several years until a fifth Crown
attorney -- this time in British Columbia -- reviewed the same evidence
repackaged by the RCMP's cold case unit and recommended a charge of
second-degree murder.
But we don't know why that Crown prosecutor recommended charging Stobbe,
because a Manitoba judge was later told the lawyer is sick and can no longer
give "meaningful information."
Even the Crown attorney prosecuting Stobbe admits the case against him is
entirely circumstantial with no direct or eyewitness evidence.
Rowbotham was viciously attacked with a hatchet or axe in the backyard of her
St. Andrews home on October 25, 2000. Her body was put into the back seat of the
family's Crown Victoria and driven to Selkirk where the car was abandoned.
A few hours later, the woman's body was discovered after Selkirk RCMP started
looking for her after getting a phone call from a worried Stobbe.
But beyond that, even the Crown admits the rest of the evidence is all
circumstantial.
Because Stobbe worked in a government department that would advise
then-premier Gary Doer, the decision was made to hire an out-of-province
prosecutor.
Alberta Crown attorney Gary McCuaig was hired by the Manitoba prosecutions
branch to review the investigation on November 14, 2000.
But less than a week later -- and less than a month after the slaying --
McCuaig surprised RCMP investigators when he told them "there was not enough
evidence to arrest/charge Stobbe."
It wouldn't be the last time RCMP investigators were offered that
recommendation.
In fact, McCuaig went even further by suggesting RCMP "shelve" the
investigation for up to two months to see if anything else popped up.
"Members of the investigation team were shocked and dismayed that a senior
Crown attorney would suggest: 1) that the investigation of Beverly Rowbotham's
murder be shelved; and 2) that investigators take a wait-and-see approach in a
homicide investigation," McCuaig wrote.
More than a year later, during a meeting that was taped between McCuaig and
RCMP investigators on April 3, 2002, after he had again reviewed the
investigation findings -- and in between had two other Alberta prosecutors
review the material and agree with his opinion -- he again told them "there was
not sufficient evidence for a reasonable likelihood of conviction."
"Here's my view: We can prove when this happened, how it happened and where
it happened... but we can't prove who and we can't prove why. And I think those,
in this case, are fatal.
"And I don't think we can say in the end that without a doubt someone else
could not have done it."
McCuaig also told the RCMP some of the evidence they believed implicated
Stobbe could be turned around by the defence to say an unknown assailant had
killed the woman.
He said while RCMP believed two buttons found in the backyard must have come
from clothes that Stobbe was wearing and had disposed of, it could also be
argued they came from somebody else. Same with a footprint found on Rowbotham's
hat in the car, but not matched to any footwear Stobbe had in the house.
Put those two pieces of evidence together, along with a sample of unknown
male DNA found by police on her purse strap in the car and "you've got, you
know, a nice big red herring for the court that there's somebody else who has
had contact with her," McCuaig said.
"I think we have a pretty good case, but we don't have a case that we can
win."
McCuaig said the only thing left for investigators would be to launch an
undercover investigation against Stobbe "but that wouldn't work with this guy"
at this time.
But RCMP investigators countered they believed only Stobbe could have
committed the slaying because not only did they believe the evidence pointed
toward him but also because of something that happened when they asked to search
the house.
"All of a sudden (Stobbe's) demeanor changed," RCMP Corporal Jack Van Dam told
McCuaig.
"Up until that point he seemed... like a victim should be acting. But then
all of a sudden, when we came there to ask him for a search at his residence,
then all of a sudden his demeanor... his expressions on his face... the tone of
his voice, everything changed."
But the Crown countered even that argument was dampened because Stobbe had
informed police he didn't want them to disturb his young children and he had
already brought an officer inside to have dinner with the family.
As well, court documents showed that at the time, Stobbe even invited an
officer to stay in the house overnight.
RCMP investigators not only disagreed with the Crown's opinion, they
"remained firm in the belief that sufficient grounds existed to charge Stobbe,"
and they sent a letter to Manitoba Justice asking for another review.
In September 2002, assistant chief Crown prosecutor Larry Stein, of Alberta
Justice, concluded his review writing "The suspect probably killed his wife and
I am highly suspicious that he did, but without more evidence I am not satisfied
we could prove it beyond a reasonable doubt."
And, once again looking at the RCMP's insistence Stobbe hadn't let them in
the house to do a voluntary search, Stein responded: "What murderer would invite
the police in to dine with them if there was a risk of uncovering incriminating
evidence?
"The suspect's actions here are far too consistent with innocence."
Ken Tjosvold, Alberta's Assistant Deputy Minister of Justice, was the final
word on the case, summing up all the reviews to date in a September 10, 2002, letter
to R. Embury, then Chief Superintendent of Manitoba RCMP, by saying: "We have at
this point had four experienced prosecutors look at this case carefully.
"In my view, they have made a thorough assessment of the evidence in light of
the proper charging standard."
But despite a lack of support from prosecutors, the RCMP kept working to have
Stobbe charged.
A few years later, after the Department's cold case unit reviewed the
evidence again, RCMP asked Manitoba prosecutions to take another look.
Investigators claimed they had new evidence. But later, Stobbe's defence
counsel, Tim Killeen, told Justice Chris Martin he couldn't find anything not
already known in the days after Rowbotham's slaying in more than 20,000 pages of
evidence disclosed to him.
Even Martin, in a pre-trial decision, pointed out that while RCMP continued
investigating between 2002 and 2007, "their efforts did not result in new
material evidence, but rather... considerable re-analysis of the evidence."
Stobbe was finally charged in May 2008, after a Crown attorney in British
Columbia looked at the RCMP case, and his trial began in late January before a
Court of Queen's Bench jury.
A spokeswoman for Manitoba Justice said the department would not comment on
the advice given by any of the out-of-province prosecutors in connection to the
Stobbe case.
Prosecutors in both Alberta and British Columbia could not be reached for
comment.
kevin.rollason@freepress.mb.ca
A legal house of cards
HERE are some of the holes in the case and weaknesses of the investigation
against Mark Stobbe, from an August 9, 2002, letter from Assistant Chief Crown Prosecutor Larry Stein of Alberta to Ken Tjosvold, Alberta's Assistant Deputy Minister of Justice:
1. There is no direct or eyewitness evidence.
2. Mark Stobbe's story that his wife, Beverly Rowbotham, went grocery
shopping the night of her death -- just hours after spending more than $100 on
food at a store -- is possible. "People forget grocery items.
Indeed, a shopping
list was found in her pant pocket at the autopsy."
3. Stobbe's claim he watched baseball on TV and phoned family members before
lying down with his three-year-old son and falling asleep until hours later. It
was later found there was a baseball game on TV and he did call relatives. "The
version he has provided is plausible and the prosecution has no evidence
whatsoever to refute his story however preposterous we may think it is... indeed
the plausibility of his story... would tend to lead to a rational conclusion
alternative to guilty."
4. Stobbe showed no signs of typical post-offence conduct including flight,
destroying or attempting to destroy evidence, concocting a false alibi or lying
or resisting arrest. "On the contrary, all of the evidence indicates that the
person acted in a manner one might have expected to be consistent with an
innocent person. He called the police, he remained at home, he attended his
wife's funeral and he was available for investigative purposes." The Crown said
an expert believed there should be more blood in the backyard, given Rowbotham's
wounds, but even if you speculate someone cleaned up the crime scene, "there is
no evidence whatsoever to prove (Stobbe) did it."
5. If Stobbe cleaned up the backyard, why didn't he clean up the garage? "It
may be that he is not the killer or it may be he is, but didn't have time to
clean it up... We have no evidence who cleaned up the scene and it would be
speculative to suggest no one but the suspect did it."
6. Why didn't Stobbe hear his wife scream in the backyard? "There is no
evidence that the victim in fact screamed. For all we know, she may have
immediately been incapacitated, thereby preventing her from screaming.
7. Was Stobbe predisposed for violence? "To the contrary, by all accounts
(Stobbe) and deceased were a loving and happy couple.
8. Nothing suggests Rowbotham was fearful of Stobbe. It "is consistent with
death caused by some unknown person... the strength of this evidence is more
harmful to the prosecution than helpful."
9. No relevant fingerprint evidence. He lived at the house and used the
car.
10. Opportunity to kill Rowbotham. Stobbe was at home but "can it be proven
he had exclusive opportunity? In my opinion no. The fatal attack took place
outside where the public would have access. The matter would be entirely
different if the attack occurred inside the home."
11. No murder weapon found. Without a weapon "the case is merely speculative
on the issue of what it actually was. And without it, the suspect cannot be tied
to the offence. Its absence is equally consistent with the suspect's story that
someone else was the murderer."
12. Motive. "Proven absence of motive is an important factor supportive of
innocence... there is no positive evidence the suspect had a motive to kill his
wife... The suspect had a loving relationship with his wife, his children, no
money problems, etc. Why would he need to kill his wife?"
13. No blood on Stobbe's clothing or anything inside the house. And the
strongest DNA evidence, mixed blood from both Stobbe and Rowbotham on a
refrigerator in the garage, can also be turned around. The blood on the fridge
supports the theory Stobbe was bleeding when he brought Rowbotham into the
garage, but "there is no evidence whatsoever that he was injured in any way when
the police dealt with him... there is an equally consistent alternative
explanation that it got there at some other time because there was no evidence
of injury to the suspect upon police involvement."
14. Unknown male DNA on the strap of Rowbotham's purse. "This leaves open the
possibility that the unknown male DNA was deposited by the actual killer in an
attempt to take the deceased's purse."
15. Wiretap evidence. Nothing points to Stobbe.
