A convicted killer's application for a mistrial has been dismissed by the trial judge.
Bradley Barton's sentencing hearing was supposed to be heard this week, but it was derailed by an anonymous letter sent in February to Barton's lawyer.
Defence lawyer Dino Bottos received the letter at his office 12 days after the manslaughter guilty verdict was reached on February 19. The letter-writer claimed to be a member of the jury.
In a 111-page application, Bottos said he believed the letter warranted an inquiry into the question of possible jury misconduct.
Cindy Gladue was Barton's victim. The 36-year-old Métis and Cree woman bled to death in a bathtub at the Yellowhead Inn in June 2011.
During the trial, Barton admitted he caused the injury, but said he had no idea at the time that she was hurt. Gladue bled to death from a severe wound in her vagina. Barton testified that he failed to immediately call for help because he worried his wife would find out he had paid for sex.
After six weeks of evidence and before jury deliberations even began, concerns were raised about comments reportedly made by jurors during the trial. Some of the jurors were questioned extensively by Court of Queen's Bench Justice Stephen Hillier.
The judge was told Juror No. 1 had expressed that working in the sex trade was "bad" and that Gladue would have lived if she had not exchanged sex for money with Barton.
Juror No. 9 was also excused after the court was told he was allegedly trying to sway the opinion of other jurors.
Bottos suggested the anonymous letter was written by Juror No. 1.
According to Justice Hillier's written decision, the letter-writer alleges Barton was not given the presumption of innocence and that Barton was not given the same respect as Cindy Gladue. No specifics were provided on the latter point.
Hillier called the allegations "unsupported generalizations."
The anonymous letter has been sealed at the request of the Crown in order to preserve jury secrecy.
The judge did not attach much weight to the anonymous letter.
"Courts attribute little credence to unsolicited comments of an author who is unwilling to self-identify in an apparent effort to be immunized from ever being asked to explain those comments," Hillier wrote.
Defence asked judge to recall jurors
In his mistrial application, Bottos asked the judge to recall all 13 members of the jury to question them about what transpired before two of the jurors were excused.
He urged the court to consider a mistrial if it was revealed that any of the jurors "had misconducted themselves in failing to presume Mr. Barton innocent throughout the proceedings, and caused others to do the same."
The Crown argued the court no longer had any authority to order a mistrial because the jury had reached a verdict and was discharged months ago.
The judge ultimately decided the court lacked jurisdiction to investigate the alleged basis for a mistrial, so he declined to recall the jurors for an inquiry.
In his mistrial application, Bottos also proposed that in the event the court found it had no jurisdiction, the judge should recall the jurors regardless to preserve a "timely and reliable record" for appeal.
Citing jury secrecy, Justice Hillier declined to recall the jurors to create a record for appeal.
In his written decision, Hillier noted the jurors had already heard and seen "undeniably disturbing" evidence during the trial that may have led them to seek counselling.
"It is difficult to anticipate the risk of a proposed inquiry some months later as may impact the coping skills that these former jurors have set in place to get on with their lives," Hillier wrote.
Barton surrendered himself into custody and has been behind bars at the Edmonton Remand Centre since the jury verdict.
The trial will now proceed to a sentencing hearing that has been scheduled for June 28-30.