Lawyers say accused killer's decision to represent himself at Sask. trial could be a big mistake
The murder trial of Greg Fertuck has been full of surprising twists, but the most recent — and perhaps the most unexpected — came from Fertuck himself.
He decided to represent himself for remainder of the trial.
"I didn't kill nobody, and all I'm gonna do is tell the truth. I'm an innocent victim. I haven't killed nobody and I can prove it in court myself," Fertuck told CBC during a phone interview.
"I don't need a shady lawyer to take my money."
The stakes couldn't be higher for Fertuck. He's charged with first-degree murder, accused of killing his estranged-wife Sheree in December 2015.
The trial has been underway for two years. Fertuck has been remanded to custody for almost four years and Sheree's family has been waiting for some sort of closure for seven years.
Fertuck was arrested in 2019 after police targeted him in an elaborate, lengthy and expensive undercover operation. The undercover technique used by police to gather the evidence that lead to the arrest is known as the Mr. Big method.
"You can't imagine a more complex sort of legal issue than a Mr. Big case. To do that by yourself … oh, boy," said Brian Pffeferle, a criminal defence lawyer in Saskatoon who has been watching the Fertuck case play out.
"I couldn't imagine the stress of facing a prosecution of killing my spouse. On top of that, you've got the stress of having to understand legal theory and the law in a very complex area."
In Mr. Big stings, police officers pretend to be criminals and draw their suspect into their supposed organization. They build up trust with the target and eventually tell them that, in order to gain the organization's trust, they must spill the details of the suspected killing to the crime boss.
In Fertuck's case, he told the boss — who was actually a police officer — that he shot Sheree twice, after an argument over money at the gravel pit where she worked near Kenaston, Sask. He took the undercover cops to the remote area where he said he left her body, but they didn't find her.
Fertuck also took them west of Saskatoon to search for the Ruger 10-22 rifle that he said he used, but they never found it.
Fertuck has told CBC multiple times that he lied about killing Sheree because he was afraid of the undercover police and thought they might hurt him.
A complicated trial rife with issues
Beyond the Mr. Big sting, the trial itself has been complicated by a series of delays caused by COVID-19, procedural issues, new evidence emerging mid-trial and the changing of lawyers.
The prosecution team re-opened their case in April 2022, calling witnesses to testify about the alleged murder weapon — a Ruger 10-22 rifle that was randomly discovered by a rural couple west of Saskatoon.
Fertuck's lawyers withdrew from the case in October 2022 after he went behind their backs and filed formal complaints against them with the provincial law society.
An independent lawyer was tasked with helping Fertuck find a new lawyer, but when court resumed he said he wanted to represent himself.
"You think like, well, have there been enough bad turns in a case where you wonder if starting fresh is actually a good thing," Pffeferle mused.
Sheree's disappearance and Greg's trial are the focus of a CBC investigative podcast called The Pit. Stream the latest episode, New Evidence, now. New to the podcast? Start here.
Justice Richard Danyliuk is presiding over the trial at Saskatoon's Court of King's Bench. His decision to acquit or convict could still be far off.
It's not yet clear whether the evidence police gathered during the Mr. Big sting, including Fertuck's statements about killing Sheree, will be allowed as evidence into the trial. The evidence has been presented in court in a series of voir dires, or trials within the trial.
The Mr. Big technique is so controversial that it's not allowed in other jurisdictions like the U.S. Critics are concerned that the technique leads to false confessions, takes advantage of vulnerable people, or pressures suspects into talking with fear or money.
The evidence is presumed inadmissible at the onset of the trial, and prosecutors must show that police played by the rules.
Fertuck's former lawyer Morris Bodnar said he thought the judge would probably admit the Mr. Big evidence into the trial. Even so, he still thought there was a strong chance of acquittal.
He doesn't believe the physical evidence and testimony aligns with Fertuck's disclosures to undercover police, and said the Crown is still missing key elements — like the bullets allegedly used and Sheree's body, which has never been found.
It's been so long that police are no longer searching for her.
Bodnar, 74, said he regrets how his role with the case ended, but that he still believes Fertuck is not guilty.
"It took two years extra out of my life that I could have spent visiting children and grandchildren, doing things I enjoy," he said.
"I completely immersed myself in this case and then to have a complaint come to the Law Society, saying that I did nothing for him — I have never worked as much and as long on a trial as I have on this one, and to have that come? Just a disgrace."
Bodnar said Fertuck's decisions, including the complaints he made about his lawyers, show he doesn't understand the court process — why certain applications (like bail) wouldn't be successful or when certain arguments are to be made.
Asked about Fertuck's decision to represent himself, Bodnar said, "Greg won't have the ability to recognize that certain witnesses may have to be called and he'll probably get on the stand and give evidence."
"And he may either make it for himself … or he'll destroy himself."
The challenge of self-representation
Bodnar and Pffeferle both spoke of an old saying among lawyers: if you decide to represent yourself in court, you have a fool for a client and a fool for a lawyer.
Canadians have a right to represent themselves in court, but Pffeferele said almost everyone would be better off with a professional on their side.
"You need to have a lawyer or someone helping you to go through line by line and say, 'here's a fact they're alleging. Is that fact corroborated?... Is this hold back evidence actually hold back evidence?'"
Self-reps aren't beholden to the law society or a code of conduct.
"If the end goal is to absolutely create a blender and make a mess of the situation, you can do that as a self-rep way easier than you can with a lawyer," Pffeferle said.
He said self-represented accused get lost in emotion, struggle to know when or how to object in the courtroom, and don't ask questions in a neutral manner. Pfferele said they should refer to themselves in the third-person, saying "the accused," instead of saying things like "you never told me…." or "I actually said…"
"The reality is that a self-rep who's asking a question isn't giving evidence, so the judge won't consider that," Pffeferle said.
"But if the accused testifies, it's open season, in my view, for a Crown to be like 'when you were asking those questions, you said this.'"
Fertuck told CBC that that he has "all the evidence written out" and feels ready to take on his own case.
"Remember that Johnny Cash song? I haven't seen this sunshine since I don't know when," he said, singing Folsom Prison Blues.
"After going on 1,200 days and locked up in hell, yeah, I wanna get it over with. That or just bury me."
A friend of the court
After Fertuck chose self-representation, Justice Danyliuk appointed an amicus curiae, a position also known as a "friend of the court." They make sure relevant evidence and case law are put forward to the judge.
Pffeferle said the amicus's duty is to the court, not the accused.
"You'll get a perspective of what they're seeing, but the client is still their own lawyer, and so you're there to basically save them from themselves."
The amicus on the Fertuck case is reviewing the evidence and preparing briefs for the judge to inform his decision on the voir dire evidence.Justice Danyliuk's decision on the voir dire evidence is scheduled for the end of April.