Judge Robert Higinbotham admits error

Judge admits error, declares mistrial
Woman accused of issuing threat at nightclub to be retried because of mistaken attribution

Kim Westad, Times Colonist
Published: Saturday, March 04, 2006

A judge declared a surprise mistrial Friday in the case of a young woman he found guilty earlier this week of threatening to kill a witness, after realizing he'd made a mistake in his judgment.
Judge Robert Higinbotham apologized to all involved in the trial of Lisa Migliarese, saying that the case has been difficult for many families.
"I am aware that this trial was not only important to Ms. Migliarese, but to other people as well, who seek to find closure from a tragedy that affected so many lives and families," the Victoria provincial court judge said.
"I particularly regret that my error has prevented this from happening and apologize to all those affected, including the complainant and the accused."
Higinbotham mistakenly attributed a portion of evidence given by Migliarese's sister Sarah at the trial to the accused.
"The misattribution was significant because it related to the important issue of credibility and formed part of the reasoning upon which I based my decision to reject (Migliarese's) evidence," Higinbotham said Friday in declaring the mistrial.
Higinbotham found Migliarese guilty Monday of obstructing justice and threatening to kill Shayla Richdale, who was slated to testify against Migliarese's boyfriend, Beau Stirling.
He was accused and later convicted of being the driver in a horrific car crash that killed his friends Travis Bateman and Kenny Hamilton, the son of former Esquimalt-Metchosin MLA Arnie Hamilton.
Migliarese was arrested the day Stirling's trial started.
She was charged with threatening Richdale two nights before at a downtown Victoria nightclub.
At Migliarese's trial last week, she, two friends and her sister denied that she threatened to kill Richdale, saying instead that Migliarese had called her a liar.
Higinbotham did not believe them, saying they had concocted their story. One of his reasons for not believing Migliarese was one point made by Migliarese's sister, who said they chose which nightclub to go to that night specifically so as not to run into Richdale, which he mistakenly attributed to the accused.
When Higinbotham found Migliarese guilty on Monday, defence lawyer John Green stood in court and said the judge had made that mistake. Higinbotham carried on with the judgment.
But he returned to his office, reviewed his notes and listened to actual tape recordings of testimony. He realized he had made a mistake.
The judge then convened court Friday to acknowledge the error and declare a mistrial, which means the case goes to trial again.
It wasn't enough to simply correct the judgment, Higinbotham said.
"Nobody, including me, would feel reassured as to the integrity of the judgment under those circumstances."
He said the error compromised the trial and that the verdict was "irremediably flawed."
While growing weary of the time it's taking for the cases associated with her son Ken's death to wind through the justice system, Carol Hamilton said she understood the judge's decision to do what he did. "I think it's way better to step up and admit you made an error and deal with it in a straightforward way like this," she said.
"We have to put our faith in the justice system to do what it does."
Her husband was a police officer for 32 years before running for political office.
Migliarese is to be back in court Wednesday to set a date for a retrial.