'He essentially got the fight that he wanted when the police arrived,' Crown attorney insist
Appeal of life sentence hinges on whether Jaw was provoked to kill RCMP constable
There's no dispute about one sad and essential fact: Constable Jurgen Seewald died in 2001 after he was hit by a shotgun blast fired by Salomonie Jaw after the policeman responded to a call about a dispute between Jaw and his girlfriend.
After Jaw shot Seewald, Jaw's girlfriend, Barbara Ettinger, tried to comfort the dying man. She held his hand and called him by his nickname.
"Ziggy, I'm so sorry," she said.
Seewald, according to Ettinger, replied, "It's not your fault … I could have handled things differently."
Jaw, 52, is now three years into a life sentence for Seewald's murder.
But appeal lawyer Marvin Bloos is seeking a new trial for Jaw on the grounds that Jaw may have been provoked to defend himself.
Bloos told the court's three judges that when Seewald pepper-sprayed Jaw in the face, Jaw had yet to do anything wrong and could have been legally entitled to defend himself.
"This was an assault by the police officer," Bloos said in court. "No one seems to have asked at trial what was his purpose in doing that."
Seewald arrived at the home shared by Jaw and Ettinger after a report of a domestic dispute at the residence.
Before Seewald arrived, Jaw loaded a shotgun he kept in the closet and returned it there, Ettinger testified at trial. As the pair waited for police to arrive, Jaw promised "trouble," Ettinger said, if she tried to leave.
According to Bloos, Seewald entered the apartment and forced Jaw to sit in a chair. In the process, Jaw's shirt became torn. Ettinger went into the next room to get him a new one. When she returned, Seewald was pepper-spraying Jaw in the face.
What happened next has never been exactly clear, but Jaw and Seewald became locked in a struggle, and in the end, Seewald was dying on the floor after being shot at close range with a shotgun.
Afterwards, Jaw sat on the bed with the shotgun's barrel pressed against his head, the trial jury heard. He then left the apartment, stepped past Seewald and pledged to kill himself.
During last week's appeal hearing, Bloos suggested Seewald never had the legal right to enter the couple's apartment because, until the gun went off, Jaw did nothing wrong.
He said Ettinger testified she never heard a struggle before re-entering the room to see Jaw being pepper-sprayed. In that case, Bloos suggested Jaw could reasonably fear Seewald, who was "five or six inches" taller and "50 or 60 pounds" heavier than Jaw.
But Crown lawyer Suzanne Boucher said self-defence must be proportional to the threat and using a shotgun to counter pepper spray is not.
"Unloading [a shotgun] into somebody over a pepper-spraying … is an overreaction. There's no way that can be considered a minimum amount of force," Boucher said.
Boucher also pointed out Jaw tried to give Ettinger what he called a final hug before Seewald arrived at the apartment. During the trial Ettinger also testified Jaw wasn't going to go with police willingly.
"He essentially got the fight that he wanted when the police arrived," Boucher said.
Jaw's original lawyer suggested he was acting in self-defence during his 2004 trial. Bloos said the trial judge, John Vertes, shouldn't have described this defence as a "theory" to the jury.
Bloos also said Vertes revealed his own bias to the jury by using phrases such "Barbara [Ettinger] testified," rather than "the accused claimed."
"How you phrase it matters," Bloos said. "He's undermining Mr. Jaw's defence with his own opinion."
The appeals court can order a new trial or uphold the original verdict. A decision is expected within a couple of weeks.