Canadian True Crime - Antonio Scopelliti

Episode Date: June 27, 2023

Three emergency phone calls, two dead teenagers, one smoking gun, and no witnesses—besides the man who was responsible. This is a landmark case that famed criminal defence lawyer Edward L Greenspan would cite as being one of two he worked on over his career that he found to be especially satisfying. Although this particular case flew under the radar, it would have a profound impact on another very high-profile case that we covered last year in this podcast.Look out for early, ad-free release on CTC premium feeds: available on Amazon Music (included with Prime), Apple Podcasts, Patreon and Supercast. Full list of resources, information sources, credits and music credits:See the page for this episode at www.canadiantruecrime.ca/episodes Hosted on Acast. See acast.com/privacy for more information.

Canadian True Crime is a completely independent production, funded mainly through advertising. You can listen to Canadian True Crime ad-free and early on Amazon music included with Prime, Apple Podcasts, Patreon, and Supercast. The podcast often has disturbing content and coarse language. It's not for everyone. Please take care when listening. Hi, everyone. I hope you're well. I've got a few things to say before we start, and it won't be long,

but if you want to skip to the start of the episode, it's only about two and a half minutes from this point. Firstly, a happy pride month to all our listeners in the LGBTQ plus community. It takes courage to be yourself and live authentically, especially in these times. I believe a diverse world is a colorful world, a rich world, a far less boring world, and I'm really happy that you're in it, so don't let anyone dim your light. You belong here. It's nearing the end of June, which means this would usually be the last episode of this season before we go on a bit of a summer break. This year has been slightly different and I wanted to thank you all for your patience as I had a few struggles myself. I remember early on a listener left a review that said something like,

the host of this podcast seems neurotic and I had a bit of a laugh but really it's the truth. I have always had perfectionist tendencies. I take a lot of pride in my work and when I worked a normal job with a boss, those traits were an advantage. But with this podcast, I find them to be quite debilitating. I'm not a CEO type. I'm just a creative working on a passion project. And I find it to be a continuous challenge to strike the right balance between listener expectations and the huge ethical responsibility that comes with true crime with my own energy levels and family responsibilities in a way that's sustainable for the future. But all I can do is try. and keep trying. So this year, I tried out a more flexible release schedule, stepping away from

releasing episodes on set dates, and I'm happy to say it's helped. So thank you so much for giving me that space. I know it's frustrating for those of you who like to know when new episodes are coming, but that bit of flexibility has allowed me to continue to release the same number of episodes a month, sometimes more, without grinding myself into the ground to hit an arbitrary deadline. So while I have a way to go, it has been worth it, and here's where I hope it might become worth it for you. This year, I've had my eye on quite a few more recent and developing stories in the Canadian true crime space that I would love to explore as part of this podcast, but I don't think a fully scripted and narrated episode is the best way to do it.

So with this little bit of extra breathing room, I've been able to put a few irons in the fire behind the scenes, and I'm feeling passionate and fond. up to continue working over the summer as much as I can. And of course, there'll be the annual case updates episode coming too. So no summer break this year and we'll continue to see how things go. It is a work in progress. Thank you again for your patience and understanding and for all your kind messages of support. I really appreciate it. And with that, it's on with the show. If you ask anyone familiar with our criminal justice system to name the top criminal defence lawyer in Canada, there's one name that will come up repeatedly.

During a career that spanned more than four decades, the late Edward L Greenspan QC became one of the most well-known and respected lawyers of his generation, retained in major high-profile criminal trials in both Canada and the United States. Before his death in 2014, Greenspan reportedly said that of all the cases he worked on over his career, he found two to be especially satisfying. The most recent of the two was the Raffa family murders, a very high-profile case that crossed borders between Canada and the United States. In July of 1994, the bodies of Canadian citizens Tariq Raffei

and his wife, Sultana Raffa, were found in their home in Bellevue, Washington. They'd been brutally beaten to death, and their daughter, 20-year-old Basma Raffa, had also been attacked. She was still alive, but died hours later in hospital. The police soon identified persons of interest, their son, 18-year-old Atif Raffae, and his best friend Sebastian Burns, who both lived in Vancouver, but had been in Washington State staying with the Raffa family at the time. It was them who found the bodies and called 911, but their behaviour and reactions afterwards were perceived as odd. After they gave their statements to police, they headed back home to Vancouver. The forensic evidence gathered was basically inconclusive

or circumstantial, and there was little else the police in Bellevue could do since their prime suspects were Canadians living in Canada. Eventually, they asked the Royal Canadian Mounted Police or RCMP for assistance, who proposed a controversial Mr Big undercover sting. Just over a year after the murders, Raffa and Burns were lured into what they believed was a lucrative criminal gang. They were 19 years old at the time, the youngest ever targets of a Mr Big Sting to date. Sebastian Burns confessed to an undercover officer that he killed Atif Raffa's family and boasted about washing their blood off in the shower.

Raffay confessed to being present and described the murder of his family members as a necessary sacrifice to achieve his goals, which were, quote, to become richer and more prosperous and more successful. As a result of the Mr Big Sting, Burns and Raffay were charged with aggravated first-degree murder in the United States, and because they were still in Canada, the RCMP detained them and charged them as fugitives. It was at this point that everything broke down. The US wanted to extradite them because the murders happened in Washington, state, but Canada put its foot down. These are Canadian citizens and Canada doesn't support the death penalty. The US was asked to take the death penalty off the table first. Thus began a six-year

court battle to extradite Burns and Raffa from Canada so they could be tried for murder in the United States. It ended up in the Supreme Court of Canada, where Sebastian Burns was was represented by famed criminal defense lawyer Edward L. Greenspan. According to his biography, he was known as a champion of civil rights and an outspoken opponent of the death penalty in Canada. Citing the increasing number of wrongful convictions, Greenspan argued that extraditing Canadian citizens to a foreign country without assurances that they won't face capital punishment amounts to a brief,

of the Canadian Charter of Rights and Freedoms. Therefore, Canada should not allow it. His argument was successful. In 2001, the Supreme Court ruled unanimously that Canada cannot extradite its citizens to the US if there's a possibility of them facing the death penalty. Atif Raffei and Sebastian Burns were extradited to the United States, where they were tried and convicted,

of three counts of aggravated murder. They maintain they are innocent and have exhausted every appeal opportunity available to them. To date, both remain incarcerated at the Washington State Penitentiary. The Raffay family murders and that Supreme Court decision was one of two cases Edward L. Greenspan cited as being especially satisfying over his career. After that ruling changed Canadian.

laws. He was quoted saying, Our hope is that the Supreme Court of Canada will have an influence on the death penalty in the United States. That hope did not come to fruition. But the other case he found to be especially satisfying also resulted in a landmark ruling. It's a case that came more than 20 years before Burns and Raffey, and it also involved two teenagers, although it wasn't anywhere near as high profile, but the distinctive outcome of this particular case would have a profound impact on another very high profile case that we covered last year in this podcast. This is the story of Antonio Scopolidi.

Aurelia is a small city in Ontario, about 150 kilometres north of Toronto. It sits on the shores of two connected lakes, and because it's on the way north to the Muscoqa district, it's often described as the gateway to cottage country. But on this Monday night, cottaging is the last thing on anyone's minds in Orillia. It's late January and it's freezing. A Bell Canada phone operator is working the evening shift when an emergency call comes in at 9.57pm. The person on the other line speaks with a strong accent and unlawful. asks for the police, but then hangs up. Not much the operator can do with that information

except hope he calls back. Seconds later, he does. This time he asks for the police to be sent to the Gold Star trailer park along with an ambulance. He hangs up again. This is 1979. The 911 emergency line is being rolled out across Canada, but it's not available in the area yet. The operator puts the local police detachment on standby in case the man calls back. A minute goes by and the phone rings again. This time the operator is able to transfer the call to the station. At 9.59pm, Ontario Provincial Police Constable Edgit picks up the phone. The caller says,

Come over here, Gold Star Trailer Park. I got two guys in the station. door, I think they take an ambulance. The man sounds slightly hysterical, but Constable Edgitt recognises his voice. It's the Italian guy who co-owns the trailer park and runs the little store at the park's entrance. Constable Edgit doesn't know him well, but they're acquainted. Two OPP officers are immediately dispatched to the Gold Star trailer park and arrive within

two minutes at about 10.01 p.m. They find two young men lying on the ground just inside the store. They aren't moving and there's a lot of blood. One of the young man is lying with his head against an ice cream freezer and he's holding a magazine in his left hand. He has extensive head wounds. The other victim is lying nearby with his back against the first young man's feet. He has multiple injuries to his torso. Both of them are clearly deceased. One of the police officers sniffs the air. There's an odour of alcohol coming from their bodies. At the back of the store standing motionless by a counter is the store owner, 36-year-old Antonio Scopolidi. His semi-automatic Beretta handgun is lying on a shelf below the counter. On top of

the counter, there are four spent shell casings. There are two more on the ground, as well as a copper-jacketed bullet. The cash register drawer is closed. Inside, there's $134 and 15 cents and notes and coins. Antonio Scopolidi sounded hysterical when he called the emergency line, but now, just minutes later, He seems to be the opposite. Calm and quiet. He says to the police, I shot them. They gave me a hard time.

Antonio Scopolidi was taken to the Aurelia police station, where he was cautioned and asked to give a detailed statement of what happened. By this point, it was just after 12.30 a.m., about two and a half hours after the shooting. Scopolidi was born in rural Italy, where his father had a farm. He worked on it until he was 20 years old, but when the farm could no longer support his large family, he left Italy to look for a job.

He ended up engaged to a young woman he knew from his home community, but she had since immigrated to Canada with her family, so after they got married, he joined her in Orillia, Ontario. He soon found work in a factory there, but he got on well with his brother-in-law and started forming a bigger plan. It took them six years, but they saved up enough money together to purchase the Gold Star Trailer Park. Scopolidi would operate the variety store and gas pump at the front. By this point, he and his wife had at least two children, and the family lived in the back of the variety store while they saw.

saved money to buy a home. For safety, Scopolidi already had a Beretta 32-cali-cali-s semi-automatic handgun that he'd purchased when he lived in Italy. He kept the handgun hidden in the bedroom, away from the children. It took four years for the family to purchase and move into a separate family home. And after that, each night they would eat dinner together and then Scopoli. would be alone in the variety store until it closed at 10pm. He kept the handgun on the shelf beneath the cash register.

But now, he was in police custody because he had just used it to kill two young men. In his statement to police, Scopolidi said that just before closing time, he didn't give the exact time, the two young men walked in. When asked if he knew who they were, he said, quote, I don't know them by name, but I've seen them before. Their names, it would turn out, were Michael J. McCray and David B. Sutton, and they were both 17 years old. But they may have appeared older than that because they were both six feet tall with fairly solid builds. Through further police questions, Scopolidi provided the rest of his version of events. After the

pair entered the store, the one known to be David Sutton tried to hit or slap him. Scopoletti said that contact wasn't made because he ducked in time. At that point, he noticed that the other teen known to be Michael McCray had his foot on the chocolate bar display rack. Scopoletti said he asked the team to move his foot, but he refused, so he ordered them both to get out of his store. In response, Sutton, said, we don't want to go, you'll have to make us. Scopoletti said he asked McCray another two times to move his foot from the chocolate bar display, and finally he did, but he grabbed a magazine from the rack.

Sutton then tried to open the cash register, which prompted Scopolidi to order him to get away as he reached under the counter for his semi-automatic Beretta handgun. He told police that he, quote, shot the one in blue first. David Sutton was found with multiple injuries to his torso. Then Scopolidi said the other teenager called him a son of a bitch and a bastard. So he shot at him too.

That's Michael McCray, who was found lying with his head against an ice cream freezer. He had extensive head wounds and was still holding that magazine. Scopoletti wasn't certain how much. many shots he fired in total or how many bullets the clip held. He stated that the gun was not fully loaded. He also confirmed that neither Sutton nor McCray were armed. This was 1979, so there was no video camera evidence and there were no other witnesses. The only people in the store at the time were Antonio Scopoliti and the two 17-year-olds and they were both now dead. The next day, Antonio Scopalidi was charged with two counts of second-degree murder.

The case for the Crown would be pretty simple. The 36-year-old store owner unlawfully shot and killed Michael McCray and David Sutton, both 17 years old. Second-degree murder means that it was believed to be a deliberate killing that occurred without planning or premeditation. Very few details were released publicly about Sutton and McCrae and their backgrounds. What is known is that they both lived with their parents and homes less than a kilometer away from the Gold Star trailer park. They were both about the same height and weight, and they were both 17 years old.

They didn't appear to be enrolled in school, but it's not known if they were working or had anything else going on in their lives. The morning of Monday, January 22nd, 1979, David Sutton went to a friend's house and they proceeded to drink beer together over the course of the day. In the late afternoon, Sutton went home to eat dinner and then returned to the friend's house to resume drinking. This time, they were joined by Michael McCray. Over the next two and a half hours, McRae drank a total of four bottles of beer. Sutton drank double this amount, eight beers, on top of the 12 he'd already consumed during the day.

According to their friend, the two boys left the house at about 9.30pm to walk to the Gold Star trailer park, which was a few kilometres away. They arrived at Antonio Scopoletti's variety store just before 10pm when it was due to close. Scopalidi claimed that he acted in self-defense, and that's where Edward L Greenspan comes in. He was retained by Scopoletti to defend him at trial, which started in the spring of 1980. This was fairly early in Greenspan's career, and he'd only been practicing for 10 years,

but his involvement in this trial would put him on the map in a major way. In his opening address, Greenspan described his client Antonio Scopoletti as a simple shopkeeper who was terrified when one of the youths tried to rob him. In a blind panic, he grabbed his gun and fired as quickly as he could. Scopoletti told the police that he had seen Sutton and McCray before, but he didn't know their names. When he took to the stand in his own defence, he testified about three separate encounters he had with them before the final fatal one. A year or two before that, he said they both came into his store, purchased two bottles of Coca-Cola, then gargled with it and spat it on the floor.

Scopoletti said he called the police who told him to let them know if it ever happened again and they would make sure the teenagers cleaned up the store themselves. On another occasion, Scopoletti said he saw Sutton and McCray throwing snowballs at the light above his door that illuminates the store window. One of the snowballs hit the light and broke it. And in January of 1978, a year before the murders, Scopoletti said a child came in and told him that someone was trying to steal gasoline. He went outside and saw Sutton carrying a five-gallon container away and then went to the pump and found there was five gallons of gasoline missing.

He testified that he phoned the police and they reportedly tracked footprints in the snow to Michael McCrae's home, but his mother said the boys weren't there. The trial judge would describe these three incidents as being, of a rather minor nature. Antonio Scopoletti then testified about shooting and killing the teenagers on Monday, January 22nd, 1979. He told the jury that David Sutton and Michael McCray entered his store, and the incident started when McCray put his foot on the chocolate display rack.

Scopoletti asked him to remove it, which McCray clearly didn't like. He had a look on his face that made Scopolidi nervous and frightened. Then, Sutton picked up two packages of gumballs to purchase and threw a dime at the shopkeeper, but it landed on the ground. Scopoletti said he bent down to pick the dime up and put it on the counter, but he didn't open the cash register because he was afraid. As he did this, Sutton put a piece of gum in his mouth and started chewing it, then removed it from his mouth and threw it in Scopoletti's face, stating,

the gum was no good. Scopolidi testified that he told the teenager to take his dime and leave, which prompted Sutton to swing at his face with a closed fist. Scopoletti ducked, so there was no contact, but he testified he was frightened. He told Sutton to go away and said he was going to call the police. According to Scopolidi, Sutton put his hand in his pocket and asked for the money, then reached out to, quote, open the cash register, saying that he would kill the store owner

before he even had a chance to call the police. Scopoletti testified that he understood this to mean that Sutton and McCray wanted to, quote, steal or rob the place and in order to do so, they would kill. He then heard someone say the words, Son of a bitch and bastard, but he didn't know which teenager said them. Scopolidi stated he was very frightened because he thought they were going to kill him,

so he grabbed the handgun and started firing. He told the jury he didn't mean to kill either of them and he didn't know how many times he fired. But he believed if he had not used the gun, he would be, quote, the one that was dead. According to a court document, the Crown pointed out that Scopolides' version of events given at trial

was, quote, somewhat different, or at least considerably amplified, from that contained in his terse answers to police questions. Like the fact that when he first spoke to police, he said the incident started with Sutton trying to hit or slap him. There was no mention of a closed fist. and then McCray put his foot on the chocolate bar display rack.

There were quite a few instances like this where the order of events was switched round, or a vivid detail given in the police statement, turned into a vague recollection at trial. And Scopolides' trial testimony described just one panicked shooting. As his defence lawyer Greenspan described it, he, quote, fired as quickly as he could in a blind panic.

But in his statement to police, Scopolidi described two distinct shootings. He also used much more intentional language. When Sutton tried to open the cash register, Scopolidi said he grabbed the handgun and, quote, I shot the one in blue first. Sutton was shot three times in the torso. Then he said that McCray called him a son of a bit. and a bastard, so, quote, I shot him too.

McCray was shot twice in the head. The police had asked him if McCray had tried to get him at all. Scopoletti said no. They also asked him if the youths indicated they were going to rob the store, and Scopolidi said they had not, but he, quote, did not know if they were or if they were horsing around. At trial, the crux of Scopoldes. Politi's claim of self-defense was that he believed the youths wanted to steal or rob the place,

and in order to do so they would kill him, so that's why he reached for the firearm. He testified that Sutton said he would kill him before he called the police, but in his police statement, there was no mention of a threat to his life whatsoever. The only thing Scopolidi told police that was threatening was when he ordered them out of the store, And Sutton replied, we don't want to go, you'll have to make us. On cross-examination, Scopolidi was questioned about these and other inconsistencies. He said that he didn't remember giving the police certain answers because he was nervous at the time, so nervous that he wasn't able to tell them, quote,

exactly what they had done to me. The defense had argued that his police statement shouldn't be admitted into evidence because it wasn't recorded. It was written on paper by the police officers. So after the judge allowed it, Edward Greenspan would only refer to it as an alleged statement. The inference was that the inconsistencies between Scopolides' police statement two hours after the shooting and his trial testimony a bit over a year later were not because he changed his story, but instead because of the way the details he gave to the police

were interpreted and notated by them. The defence then called an eminent psychiatrist to give an opinion about Skopolides' emotional state after the shooting. Both the emergency line operator and the police found him to be excited or hysterical, when he made the phone calls. But when the police arrived at his store, he was observed to be standing still, calm and quiet, with a flat demeanour.

The psychiatrist testified that, in his opinion, Scopolides' condition was consistent with his being in a state of emotional shock. At autopsy, a forensic pathologist had determined that Michael McCray had been shot twice in the head. As you'll recall, he was found lying with his head against an ice cream freezer, holding a magazine. One bullet had entered just below his right eye, and the other had entered above his right ear, and passed through the vital portions of his brain to rest on the left side of his head.

The pathologist testified that either of these wounds would have been fatal on their own. David Sutton was found lying with his back against McCrae's feet. Scopolidi originally told the police that he shot Sutton first, but his trial testimony was vague. He said that what prompted him to grab his gun from under the counter and start shooting was when Sutton reached out to open the cash register. The autopsy determined that Sutton was shot three times, at least once from behind.

This bullet entered his back just below his left shoulder and exited out the front. A firearms expert testified that the corresponding bullet hole in Sutton's jacket had gunpowder residue around it. This indicated that the muzzle of the gun was only about six to 15 inches away from his back when it was fired. The wound that likely caused some of the gun, likely caused Sutton's death, entered from the left in the back of his chest and exited out the

front, and the other bullet entered on the left side of his upper torso and traveled across his body towards the right, where it was found lodged just below his right shoulder. The pathologist testified they weren't able to determine who was shot first, the sequence of the gunshots or what their positions were when they were shot, how they were. were standing or facing in comparison to Scopolidi. And even if an initial position were able to be determined, the jury heard the impact of any of those bullets may have caused their bodies to move. The jury also heard testimony from a firearms expert for the Crown,

who examined and tested Scopolidi's handgun, the semi-automatic 32-caliber barretta. This expert conducted two days. different tests. For the first test, he fired four shots at two separate targets, taking aim each time he pulled the trigger, which appears consistent with Skopolides' initial statement to police. The expert said it took him seven and a half seconds to fire those four shots, and he determined that the handgun had no tendency to discharge accidentally. Each time a shot is fired, the trigger must be pulled. In the second test, he fired rapidly without aiming at any targets,

which aligns with Scopolidi's testimony at trial. The expert said the firearms magazine held eight cartridges or bullets, and he emptied it in two and a half seconds. Scopolidi had testified that his handgun was not fully loaded, but he didn't know how many shots he had fired. The expert had an answer for this. He testified that the handgun had been completely emptied. As for how many times the trigger was pulled,

there were a total of six spent shell casings at the scene, indicating there had been at least six cartridges or bullets in the magazine when Scopoldini picked up the handgun. Of these six shots, five of them hit McCray and Sutton. And of those five hits, three were determined to avoid. caused wounds that would have been fatal on their own. Pretty bad luck for a guy who fired rapidly in a blind panic. To further the claim of self-defense, the jury heard that 36-year-old Antonio Scopalidi, the defendant, was approximately 5 foot 5 inches tall and weighed about 165 pounds,

whereas Sutton and McCray, the victims, were each six foot tall and weighed about 190 pounds. And Scopolidi was portrayed as being gentle, humble and even-tempered, someone who had a good reputation for integrity and peacefulness. Multiple character witnesses were called to testify to this for the defence, including his brother-in-law and business partner, who also told the jury he'd actually advised Scopoletti to buy a shotgun because of the rash of robberies and shootings in the area. When it came to the character of Sutton and McCray, the court had already heard Scopoletti's testimony about his three prior encounters with them, which the judge had described as being

of a rather minor nature. But defence lawyer Edward L Greenspan had something else up his sleeve. In his later memoir, Greenspan, the case for the defence, the lawyer wrote that he said, his self-defense strategy for Scopoletti focused on two themes. The first was to raise doubts about the accuracy of the police as they recorded Scopoliti's alleged statements in the hours after the shooting. But the second theme posed a major legal problem. He wrote that when his team was investigating the case, they uncovered other incidents of assaultive behavior by David Sutton and Michael McCrae, incidents that involved violence or threats of violence. Greenspan wrote that these incidents were senseless and fairly vicious attacks, and

quote, I wanted the jury to know about them, but I had to overcome a major hurdle in law. The problem was that Antonio Scopolidi himself was not aware of any of these incidents at the time of the murders. Up until that point, in similar cases involving a defense of self-defense, the court allowed evidence that the victim had a propensity for assaultive behavior, but only if the defendant knew about it at the time. Quote, because only then could it have made him fear for his own safety. Greenspan wrote that in all other instances, this kind of evidence is irrelevant, because it couldn't have influenced the defendant's state of mind if he didn't even know about.

He also wrote that it's prejudicial because it could result in the jury feeling that the victims somehow deserved to be killed. It was risky for sure, but Greenspan decided to go for it and see if he could get these incidents admitted as evidence in the Scopolidi trial. Ultimately, it would be up to the judge. So, in a separate hearing, the judge heard testimony about three separate. incidents involving Sutton and McCray that happened in the 10 months before they were murdered. The first was referred to as the Littster incident. 29-year-old Braden Littster testified that at about 10.15 p.m. one evening, he and his fiancé Carol were driving home to Aurelia when a car drove close behind them and

began honking the horn. There were four occupants in that car, two of us. of whom were David Sutton and Michael McCray, and they were all yelling and screaming at Lister. When the car got ahead of them, the driver slammed on the brakes, got out of the car, and began to walk back to Lister's vehicle. Litser decided not to hang around. He pulled out and sped off in direction of the police station, but Sutton and McRae jumped back in the car, and it closely followed him through town. According to the court document, twice when the other vehicle was close to their car,

one of the boys opened the right passenger door of the vehicle and stood on the running board, holding on to the inside of the vehicle. Litscher testified that he and his fiancé were very frightened. They were followed right to the front entrance of the police station, where two people believed to be Sutton and McCray, jumped out and tried to open the doors of their car. Litsda took off again and drove to the back of the police station where he reported the incident.

He testified that on two occasions after that incident, he was followed by Sutton, who was riding a motorcycle. Neither situation escalated to a confrontation, but Lister was sufficiently spooked to obtain a peace bond against Sutton and a court date was set. But when he attended court, he recognised Sutton's father because they belonged to the same curling club.

The two got to talking and whatever Sutton's father said convinced Littster not to proceed with the peace bond. The second incident, called the Keith Henderson incident, happened two and a half months before the murders. 26-year-old Keith Henderson testified that he was driving his car to work, and as he attempted to pass a half-ton truck, the driver of that truck,

17-year-old David Sutton, began to break and then accelerate as though trying to prevent Henderson from returning to his lane. It worked. Henderson had to pull back behind the truck. Suddenly, Sutton stopped his truck in the middle of the road, jumped out and walked back to Henderson's car. Sutton called Henderson a son of a bitch and accused him of cutting him off. It turns out that Michael McCray was a passenger in the truck,

and he walked over and punched Henderson in the side of the face. Henderson drove away quickly, but Sutton and McCray jumped back in the truck and sped off to follow him to his place of employment. Just as Henderson pulled into the parking lot, Sutton got out of the truck, accused him of cutting him off, and then punched him in the face twice. Henderson testified that he didn't know

either David Sutton or Michael McCray, and he was obviously frightened. His employer ended up pursuing charges against the teenagers and they were fined. The third incident was referred to as the Brian Barnes, incident. It happened either that same month or the next, about two months before the murders. 19-year-old Brian Barnes testified that in November or December of 1978, he was walking along the street with his girlfriend when Sutton and McCray jumped out of a car and pinned him against

a wall. Barnes said he knew David Sutton from school and had seen him with Michael McCray, but otherwise did not know McCray. He testified that Sutton told him, I don't like the looks of you, and then hit him four or five times in the face and the arm, while McCray stood by and watched. Barnes stated that he had done nothing to provoke the incident, and although he was very frightened,

he did not report it to the police. Greenspan argued that this testimony about these three incidents should be admitted into evidence, because they demonstrate that Sutton and McCray have a pattern of prior aggressive and threatening behavior. He pointed out that all three incidents were factually similar to that described by Scopolidi. One of them involved threats of violence, and two of them resulted in actual violence perpetrated by the teenagers. Greenspan argued that this evidence corroborated Scopalides' testimony that Sutton and McCray were aggressive bullies who threatened him with violence. In fact, it was the only evidence that could potentially corroborate his testimony

because there were no other witnesses and no video evidence. But it was ultimately up to the trial judge to decide whether this testimony should be admitted. The trial judge determined that the testimony about the three prior incidents involving Sutton and McCray was relevant as it speaks to their reputation and disposition. He found that this evidence, quote, tends to show that both the victims were predisposed to unprovoked violence on strangers and acquaintances alike, and on the occasions described, would bully and threaten their victims. But the judge pointed out the difficulty in admitting testimony like these prior acts of violence, when Scopoliti, the accused claiming self-defense,

was completely unaware of them. The reason this kind of evidence had never been permitted in court before was because if the situation were reversed, and evidence like this had been offered by the Crown to show that Scopoliti, for example, had a propensity for grabbing a gun and shooting at people, it would almost certainly have been ruled inadmissible. This is why a defendant's criminal history is often put under publication ban

because a jury might consciously or unconsciously attach more weight to it instead of focusing on the facts of the case before them. Typically, it's only after a guilty verdict and the judge is deciding on a sentence that this past history information becomes relevant. But when it came to the judge, the Scopoletti trial, the judge stated that in certain circumstances, evidence of distinctive personality traits may be admitted, and in this case, the evidence indicates Sutton and McCray

had personality characteristics that the judge thought were out of the ordinary. He described this evidence as being of an extraordinary nature, and found it to be relevant to Scopoletti's defense, as it pertains to the question of whether he was guilty of intentional but unplanned second-degree murder. The judge stated it would not be in the interests of fairness to Scopolidi to exclude it. This testimony was admitted into evidence, but the judge would give specific instructions to the jury that they would only be able to make limited use of it. They could use it to conclude that Sutton and McCray were likely bullying and threatening to Scopolidi that night. But what they couldn't do is use it to determine whether Scopolidi was genuinely terrified for his life

and personal safety. When it came to fairness to the Crown, the judge confirmed that any possible evidence about prior events involving the defendant, Scopoletti, would continue to be inadmissible. But the Crown would be free to introduce. rebuttal evidence about the disposition of the victims, Sutton and McCray, to counter the defense's narrative that they had a history of bullying and threatening their victims. No such evidence was introduced. After the jury heard the testimony of Henderson, Littster and Barnes about their prior experiences with Sutton and McCray, the defense called an expert witness,

the head of psychology at an addiction research center. This psychologist testified that individuals who have a history of behaving aggressively are more likely to engage an aggressive behavior in the future. And when two aggressive individuals get together, their levels of aggression may be intensified, particularly when they identify a suitable target for that aggression. And there was one more thing. As you'll remember, both Sutton and McCray had been drinking before they walked to the trailer park.

Because one of the police officers had smelled alcohol around their bodies, blood samples were taken to determine their blood alcohol levels. The court heard David Sutton's blood alcohol level was 0.133. As a reference point, that's more than one and a half times the legal limit to drive. As you'll remember, he'd been drinking throughout the day and evening. Michael McCrae had only been drinking in the evening, and his blood alcohol level was considerably less at 0.054, well below the legal limit, so he wouldn't have faced charges if driving. The psychologist told the jury that their blood alcohol levels

could be significant in this case, because aggressive behaviour is intensified by. alcohol. He said it was his opinion that, quote, levels of alcohol which are not very high may be relevant when two violent people are together. So that was the trial of Antonio Scopoletti. In his charge to the jury, the trial judge said they would need to consider all the evidence and determine whether Scopolidi genuinely believed his life or physical safety was in danger. then they would need to decide whether the force he used was justified and no more than what a reasonable man would have used in similar circumstances.

The jury took less than three hours to return with a verdict. They found Antonio Scopoletti not guilty of second-degree murder on both counts. Edward L. Greenspan's audacious plan for defence had been successful. The Crown appealed Scopoletti's acquittal on several grounds, including issues with the way the trial judge instructed the jury. All grounds but one were easily rejected by the judge. The main issue was that the Crown believed the trial judge should not have admitted that Scopolidi evidence, the testimony of specific acts committed by Sutton and McCray that were unknown to Scopoletti. Crown prosecutor D.C. Hunt argued that Sutton and McCray's previous conduct had no real probative value in support of Scopoletti's version of events.

In other words, it didn't prove anything. He also disputed Greenspan's argument that these three previous acts of violence were factually similar to the incident Scopolidi testified about. While there was definitely violence involved in those incidents, the situations weren't consistent with Scopolides' testimony, which described a life-threatening incident that involved attempts to steal or rob him and a threat to kill him. The Crown argued that the three previous acts of violence were not life-threatening, therefore not factually similar. The Ontario Court of Appeal did not agree.

finding that the evidence showed that both Sutton and McCray acted together to commit three acts of unprovoked violence and intimidation in the 10 months leading up to their incident with Scopoletti. The appeal court found the evidence had significant probative value, meaning it tended to prove that they likely attacked Scopoldini in a manner consistent with his own testimony. And although none of those previous acts were life-threatening, The appeal court found this evidence could support an inference that Sutton and McCray

had a propensity for the kind of violence and conduct that could result in the victim of such violence to consider it to be life-threatening, even if it wasn't. In delivering its decision, the Ontario Court of Appeal noted that the jury's verdict of not guilty indicated that they had accepted Scopolides' evidence, or at least didn't reject it. And the verdict also indicated that the jury was not satisfied beyond a reasonable doubt that the force Scopoletti used to defend himself was excessive. The decision stated that Scopoletti's evidence was, quote, that he acted in fear of his life as a result of the entire sequence of events

which included an actual assault, and the actions of Sutton in putting his hands in his pocket, demanding the money, threatening to kill Scopoletti before he called the police, and reaching towards the cash register, thereby causing Scopoletti to believe they were going to rob and kill him. The Court of Appeal found that the Crown had failed to prove that the verdict would have been any different if the testimony of those previous acts were not admitted in evidence. In other words, Scopolides' testimony alone satisfied the jury that he genuinely believed his life was in danger and that the force he used was justified and no more than what a reasonable man would have used in similar circumstances. The final paragraph of the appeal decision acknowledges that people who are detached from the,

the events and didn't attend the trial may feel that the force he used was excessive. But, quote, it is rarely possible, however, to capture the atmosphere of a trial by a reading of the transcript. The decision stated that the jury had the advantage of hearing and seeing the witnesses, including Scopolidi. They were in a much better position than the appeals court to judge whether he genuinely believed his life was in danger, and that, quote, he could not preserve himself from death or grievous bodily harm otherwise

than by doing what he did. The decision stated that the jury resolved those questions in favour of Scopolidi, and with that, the appeal was dismissed. R.V. Scopolidi was a landmark case that has been cited often in other trials. And this decision cemented Edward L. Greenspan's emerging reputation as a powerhouse in the Canadian legal community. From that point on, in claims of self-defense, evidence of previous acts of violence or aggression by the victim that the accused did not know about would be referred to as Scopolidi evidence.

The case set a new precedent in 1981, but when Greenspan published his memoir, six years later, he predicted that the use of Scopolidi evidence in future trials would be limited. He was right, and it's not hard to see why. Over the years, many more Scopolidi applications have been attempted, but there's little indication that any of them were actually deemed relevant by the judge to admit as evidence. Many applications were rejected because the prior incidents weren't sufficiently relevant to the matter at hand, and others because the timing of the incidents weren't close enough to the matter at hand to be relevant. Edward Greenspan wrote in his memoir that ultimately, the question of guilt

or innocence, quote, can only be answered by a judicial process in which all relevant evidences played before the triers of fact according to law. That said, there was one very high profile. case where a Scopolidi defense was successful, but it wasn't before a trier of fact because it wasn't a trial. Last year, we covered the death of Darcy Allen Shepard, a cyclist who died on a Toronto street in 2009 after a serious and violent altercation with former Ontario Attorney General Michael Bryant, who was driving a convertible Saab. It was and still is the most controversial case we've covered.

Initially, Bryant was charged with criminal negligence causing death in dangerous operation of a motor vehicle. A special independent prosecutor Richard Peck was brought in from British Columbia to avoid a conflict of interest. A later Freedom of Information request revealed the police investigation had identified at least 19 eyewitnesses who overwhelmingly viewed Bryant as the main aggressor in the altercation. There were also short CCTV video clips that appeared to show his convertible ramming into Shepard, knocking him onto the hood and then onto the road.

A comprehensive police collision reconstruction report determined that both men shared responsibility for the incident. Michael Bryant would claim he acted in self-defense. His defense team, led by lawyer Marie Hennon conducted their own separate investigation from the police, which is common in high-profile cases like this. They gathered stories of alleged altercations that six motorists said they had with a cyclist believed to be Darcy Allen Shepard, that Michael Bryant was not aware of the night of their altercation. His lawyer decided to share this information with the special independent prosecutor as potential Scopeliti evidence. But the case did not proceed to trial.

Instead, Richard Peck announced his decision to withdraw the charges against Michael Bryant and held a special hearing to explain. There was a lot of emphasis put on the defense's Scopolidi evidence, but little to no mention of any of the evidence from the police investigation. The special independent prosecutor explained that these six incidents suggested that the cycle, Darcy Allen Shepard, had a past history of aggressive and threatening behavior, and that meant he was more likely the primary aggressor in the altercation with Michael Bryant. Richard Peck stated that Bryant was in a state of fear and panic,

and the way he drove the convertible that night was consistent with what any other decent driver would have done in the same situation. For this reason, he determined there was no reasonable prospect, conviction and the charges were dropped. So this was considered a successful Scopolidi defense, but there are many important and distinctive differences between Antonio Scopolidi and Michael Bryant. Here's just a few as food for thought.

At the Scopolidi trial, when deciding whether the Scopalidi evidence should be admitted, the judge stated that previous acts of violence by the victim, that the person claiming self-defense did not know about must quote, only include acts which may legitimately and reasonably assist the jury in arriving at a just verdict. This statement suggests that the only circumstances in which scoply the evidence should be admitted is to assist the jury, so it must be relevant.

And it also infers that there is a jury, a trier of fact, to decide on a verdict, which there was at the Scopolidi trial. And when it comes to relevance, there were no other eyewitnesses in the Variety Store and no video evidence. So the judge determined that this Scopolidi evidence provided additional relevant information for the jury to consider

when arriving at a verdict. But with Michael Bryant, there was no jury because it wasn't a trial. If it were, a judge would have considered whether the six alleged incidents were sufficiently relevant to assist the jury, and the judge may have seen that only one of the incidents was a positive verified identification of Shepard. In another, the person had no idea when her incident happened. The best she could guess was that it was several years prior, and another wasn't even sure the cyclist she saw was Shepard.

But there was no judge to admit the scope of leady evidence. There was no testimony from any of the motorist witnesses and no opportunity for cross-examination of them. Richard Peck simply read out a summary of what these witnesses might have testified to. And one final thing about what Edward L. Greenspan wrote in his memoir that the question of guilt or innocence can only be answered by a judicial process in which all relevant evidence is played before the tries of fact, according to law. Had there been a trial for Michael Bryant,

the jury would likely have heard testimony about the evidence from the police investigation, from at least some of the 19 eyewitnesses, the collision reconstruction experts, video experts to interpret that CCTV footage, which they also would have seen, and there would have been the opportunity to cross-examination, to cross-examine all of the witnesses. It's not known what the outcome might have been,

but at least, like the trial of Antonio Scopoletti, the judicial process would have been transparent and above board, and the jury would have had ample evidence to legitimately and reasonably assist them in arriving at a just verdict. Thanks for listening, and thanks as always for your supportive and kind messages. For the full list of resources and anything else you want to know about the podcast,

visit canadian truecrime.ca.ca. We donate monthly to those facing injustice. To commemorate Pride Month, we've donated to the Canadian Center for Gender and Sexual Diversity, who provide education, research and advocacy to empower gender and sexually diverse communities. See the show notes to learn more. This episode was Research to Research, and Advocacy. written by me. Audio editing and production was by We Talk of Dreams, who also composed the theme songs. Production assistance was by Jesse Hawke. Narration and sound design was by me,

and the disclaimer was voiced by Eric Crosby. I'll be back soon with another Canadian True Crime episode. See you then.