Courts Gag Media at Sensational Canada Trial : Justice: The facts in the murder, kidnaping and assault case will eventually come out. Citizens rely on U.S. TV, smuggled papers.

TIMES STAFF WRITER

Even on a continent numbed by the likes of Jeffrey Dahmer and Night Stalker Richard Ramirez, the story unfolding at the trial here of Paul Bernardo, a boyish, 29-year-old bookkeeper, is striking in its depravity.

To begin with, there was his alleged accomplice, then-wife Karla Homolka, 23, who prosecutors say assisted Bernardo in kidnaping, molesting and killing teen-age girls. In a controversial plea bargain struck last summer, Homolka was convicted of two counts of manslaughter and sentenced to 12 years in prison. She could be out on parole in as little as four years.

Now she is expected to be the crucial prosecution witness against her ex-husband. Bernardo has pleaded not guilty to nine counts, including murder, sexual assault and kidnaping.

Then there is the mysterious death of Homolka's 15-year-old sister, Tammy, on Christmas Eve, 1990. Authorities initially wrote it off as an accident but exhumed the body for re-examination after Bernardo's 1993 arrest. After more than a year of silence about what they found, prosecutors last Tuesday charged Bernardo with manslaughter and aggravated sexual assault in Tammy's death.

But what may be most startling about this case, at least to Americans, is the secrecy enshrouding it.

For nearly a year, Canadian reporters have been prohibited from reporting all that they know--including the details of Homolka's confession and what authorities now believe really happened to Tammy.

The courts have enforced the publication ban under Canadian laws protecting an accused's right to a jury untainted by pretrial publicity.

While the ban--or, more properly, delay, because the material will be made public at some point--is far from unprecedented here, it has stirred debate and even defiance. And it has heightened public interest in the case even more.

Prosecutors have been accused of using the prohibition to screen themselves from criticism over their deal with Homolka.

The proximity of St. Catharines to the United States--it is just a few miles from Niagara Falls, N.Y.--has complicated the issue.

The U.S. media have reported far more complete accounts of the evidence than have been published here. And while U.S. newspapers and broadcasts are beyond the reach of Canadian courts, in an era of satellite television, computer modems and fax machines they are well within the grasp of Canadians. Some U.S. reports have leaked north, illustrating how hard it can be for Canada to protect its laws and traditions from U.S. encroachment.

The order has also divided Canadian journalists, who for the most part have observed the ban but disagree on its merits.

A group of Toronto newspapers and the Canadian Broadcasting Co. have appealed the order and await a ruling by the Ontario Court of Appeals.

"Our main argument is that when you're talking about prejudicing a jury, you need to balance that with the public's right to know about what happened at her trial," said Toronto attorney Peter Jacobsen, who represented Thomson Newspapers before the appeals court. "Jurors can perform their tasks no matter what they've seen or heard beforehand, as the courts say they do in other circumstances."

Michael Mandel, a law professor at York University in Toronto, said bans "take jurors for such morons that they can't tell the difference between evidence heard at trial and what appears in the newspaper."

But Catherine Ford, associate editor of the Calgary Herald, believes along with many other Canadian journalists that publication bans are acceptable in some cases.

"There's a hierarchy of rights, and the right of the accused to a fair trial has to come first over the public's right to know every detail of what happened whenever they want to hear it," she said.

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Nicknamed "The Ken and Barbie Killers" by the tabloids for their blond good looks, Bernardo and Homolka met while she was still in high school in this city of 120,000 on Lake Ontario. He was an accountant trainee in suburban Toronto, where women at the time were being terrorized by a serial rapist.

The couple were married June 29, 1991, and the ceremony was dedicated to the memory of Tammy. On the same day, the dismembered body of 14-year-old Leslie Mahaffy, encased in concrete, was pulled from a reservoir south of town. It was later determined that she had been sexually assaulted and strangled.

Ten months later, 15-year-old Kristen French was abducted while walking home from school. Her body was discovered in a ditch two weeks later.

Police concluded that she had been held captive and sexually assaulted until shortly before her body was dumped.

Detectives from several jurisdictions joined in a hunt for the killer or killers.

But they made little apparent progress until January, 1993, when officers were summoned to hear a domestic violence complaint by Karla Homolka Bernardo. She told them that her husband had struck her with a flashlight, but she didn't stop with that. After listening to Homolka, investigators arrested Bernardo as the suspect in the murders of Leslie Mahaffy and Kristen French.

It was not until May, 1993, however, after protracted negotiations between Homolka's lawyer and the Ontario attorney general's office, that Bernardo was formally charged.

His trial began here May 4 and is expected to last up to a year, with no jury selection until this fall. Procedural arguments are expected until then.

Prosecutors have brought two additional indictments against Bernardo, one in Tammy's death and two additional sexual assaults and another for 28 unrelated sexual attacks in the Toronto area. Toronto police questioned Homolka earlier this month about two other unsolved murders of teen-age girls but did not disclose what they learned.

Homolka was convicted of two counts of manslaughter in a brief trial last summer that resulted in the publication ban, which, in an unexpected twist, was sought by the prosecution and opposed by Bernardo's lawyers.

On July 5, Judge Francis Kovacs excluded the general public from the courtroom where Homolka entered her plea.

He permitted Canadian journalists to remain but prohibited them from reporting what they heard. Saying he could not control what American reporters would write, Kovacs also ordered them to leave.

What followed behind closed doors was a 27-minute recitation of the evidence against Homolka, as agreed to by the defense. The account was so gruesome even veteran police officers and crime reporters were visibly shaken, according to some of those present.

Canadian news reports were sketchy, but the ban whetted U.S. journalistic appetites. Before Kovacs imposed the publication ban, only a handful of U.S. newspapers and television stations from nearby Buffalo had followed the case. Afterward, television--including CNN and the tabloid show "A Current Affair"--and Newsweek, among others, pursued the story.

The most detailed account appeared last November in the Washington Post, written by Toronto-based correspondent Anne Swardson. Based on "interviews with people knowledgeable about what was said in the courtroom, and on press reports," the account disclosed that the evidence read at Homolka's trial included the information that she had drugged her sister with an animal tranquilizer and joined with Bernardo in a sexual assault on the girl while she was unconscious. Tammy Homolka started vomiting afterward and choked to death.

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U.S. coverage of the case reached Canada despite extraordinary efforts by authorities to stop it. When the Post story was reprinted in the Buffalo News, Canadian border inspectors seized hundreds of copies that Canadians sought to bring home.

Cable television systems in Toronto routinely black out portions of U.S. newscasts on the case. But the story was relayed by computer bulletin boards and on-line services, transmitted by fax machines and passed along by mail and word of mouth.

Amid this peculiar atmosphere, Nick Pron, a Toronto Star reporter who was present in the courtroom when the evidence was read, found himself wondering whether some of the readers who called the Star newsroom unsuccessfully pumping him for banned information actually were police officers on a sting operation.

And a retired Canadian police officer named Gordon Domm embarked on a campaign of civil disobedience. Domm has been arrested three times for distributing U.S. or British press reports that include banned information. He was charged with contempt of court in one of the instances, and a trial is scheduled for Monday.

Domm, a self-styled agitator for tougher criminal sentences, dismisses assertions that the ban is intended to preserve Bernardo's rights.

"The real reason is to cover up the severity of the crime to prevent public outcry over the light sentence" given Homolka, Domm asserted in an interview. "Doesn't the public have a right to know so it can judge whether justice was done?"

Among the unanswered questions: How important is Homolka's testimony to the prosecution? Was she a battered wife, forced into these acts by her husband, or could she have been a willing participant? Why was she not charged in Tammy's death?

Supporters of the ban contend that at some point--following Bernardo's trial, or perhaps when a jury is selected--the prohibition will be lifted, and the press and public will have access to all the facts.

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Exactly how often Canadian courts impose publication restrictions is unclear.

"There are no statistics on this," said Robert Martin, law professor at the University of Western Ontario. "One of the problems of doing any research of criminal justice in Canada is the appalling state of criminal statistics here. . . . There are no clear definitions and no clear numbers."

Martin also points out that it is often difficult to judge whether a publication ban is necessary, because once one is imposed, the general public has no immediate access to much of the evidence on which it was based.

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