Manitoba couple 'horrific' to dead daughter, but not murderers: lawyer
Last Updated: Friday, December 5, 2008 | 4:49 PM CT
The Canadian Press
A Manitoba couple charged with brutally torturing and leaving a five-year-old girl to die on a cold basement floor were terrible parents but not murderers, their defence lawyers told a Winnipeg jury Friday.
In closing arguments, separate defence teams for Samantha Kematch and Karl McKay maintained the jury doesn't have enough evidence to convict the two of first-degree murder in the death of Phoenix Sinclair.
Jurors have heard that the girl suffered months of abuse at the hands of her guardians — she was punched and kicked, shot with a pellet gun, and forced to eat her own vomit.
While the Crown argued that Sinclair's death was the inevitable result of being "brutalized," starved and used as a "punching bag," defence lawyers urged the jury to consider the lesser charge of manslaughter.
'She treated her daughter terribly, but she didn't kill her.'— Samantha Kematch's lawyer Sarah Inness
Calling Kematch a bad mother is an "understatement," said her lawyer, Sarah Inness. But she added that the abuse doesn't make Kematch a murderer.
"No one could say what happened to Phoenix is anything but horrific and cruel," Inness said. "She treated her daughter terribly, but she didn't kill her."
Although they didn't deny many of the allegations, Kematch and McKay blamed one another for Phoenix's death.
Inness said Kematch was dominated and intimidated by McKay, her common-law husband and a man 20 years her senior.
He was, she said, the one who delivered the blows that caused Phoenix to die on the basement floor of their home in Fisher River.
"He ruled that house in Fisher River with an iron fist," said Inness. "[Kematch] could have prevented her daughter's death and she didn't."
Phoenix died in June 2005 but her body wasn't found in a shallow grave until the following year.
The couple was charged with first-degree murder in 2006 after Kematch tried to pass off another child as Phoenix to fool welfare investigators and the RCMP into believing her daughter was still with the family.
Father's lawyer pins blame on mother
Mike Cook, one of McKay's defence lawyers, said there's no doubt Phoenix was treated terribly. If the charge before the court was horrible parenting, his client would have pleaded guilty, said Cook.
"But that's not what this case is about," he said, urging jurors to set aside their revulsion for McKay and examine the facts.
Kematch's defence that she was an intimidated, dominated woman is "rubbish," Cook argued. She's a "callous" and "sadistic" woman who didn't care about her own flesh and blood.
"That woman over there is a cold-hearted woman," Cook said, pointing to Kematch in the prisoner's box. "She is a woman who not only had the capability but did use lethal force … and killed her own child."
Abused child was bound to die eventually: Crown
Crown prosecutors argued that both Kematch and McKay are responsible for Phoenix's death.
Crown attorney Rick Saull said each of them inflicted "injuries upon injuries" on the little girl, making her death "inevitable."
She went from being a chubby, happy child to gaunt from malnutrition, bald and covered in bruises, he said as some in the courtroom wept.
Forensic evidence found Phoenix's injuries were similar to those inflicted in a car accident, Saull added. Yet not once did either Kematch or McKay take her to the doctor or even give her a hug.
McKay's own son testified that the couple repeatedly beat Phoenix, leaving her on the basement floor to die, Saull reminded them. When they found the child dead, they wrapped her in garbage bags and drove the body to a remote site near a garbage dump rather than take her for medical help.
"You just have to hold a small child in your arms once to know what a fragile little life that is," Saull told the jury. "Neither of these accused can walk away from this brutality."
The jurors are expected to return Tuesday to receive instructions from the judge before they begin deliberations.
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