In a rare move, Ontario’s top court has ordered a third trial in the same first-degree murder case, lambasting the Crown’s key evidence: an expert witness whose testimony about gang members with teardrop tattoos contained “inaccuracies” and even “falsehoods.”

At the second trial for Warren Nigel Abbey related to the 2004 murder of Simeon Peter in Scarborough, sociologist Mark Totten testified that a teardrop tattoo meant one of the three things: the individual had lost a loved one or fellow gang member, had spent time in prison or had killed a rival gang member.

The Crown alleged that Abbey was an associate of the Malvern Crew gang who shot and killed Peter, mistakenly believing he was a member of the rival Galloway Boys, and that Abbey had a teardrop tattooed under his right eye about four months later.

Abbey was acquitted at his first trial — in which Totten was not permitted to give evidence — but the Crown appealed and at the second trial, where Totten did testify, the jury convicted Abbey.

In a decision released Friday, the Ontario Court of Appeal largely sided with Abbey’s lawyers and found Totten’s evidence “unreliable,” that he “misrepresented” the sample size of gang members in some of his studies, and that statistics he provided on the stand about gang members with teardrop tattoos are nowhere to be found in his studies.

The court also stated there is a “legitimate concern that Totten’s interview summaries are fabrications” in two of his studies, which contain the same quotes from three participants. Totten had denied in a different court case that he used the same gang members in more than one study.

“I have concluded that the fresh evidence shows Totten’s opinion evidence on the meaning of a teardrop tattoo to be too unreliable to be heard by a jury. If the trial judge had known about the fresh evidence he would have ruled Totten’s evidence inadmissible,” Court of Appeal Justice John Laskin wrote for a unanimous three-judge panel.

“And the absence of Totten’s evidence would reasonably be expected to have affected the jury’s verdict. I would admit the fresh evidence, allow Abbey’s appeal, overturn his conviction and order a new trial.”

Abbey has been in prison since his conviction at his second trial in 2011.

He will be applying for release pending a retrial, his lawyers told the Star on Friday.

“We are gratified that the court found, as we had argued, that this Crown witness’s evidence was unreliable and dangerous,” said David E. Harris and Ravin Pillay in an emailed statement.

“This is another example of how expert evidence can mislead a jury and contribute to an unsafe conviction.”

Totten did not return the Star’s requests for comment Friday.

Neither side opted to seek permission from the Court of Appeal to call Totten to respond to the issues with his research and evidence.

“As Totten has not been directly confronted with some of these deficiencies and inaccuracies in his testimony and research I think it would be unfair to make the positive finding that Abbey urges us to make: Totten fabricated or concocted part of his research, or gave deliberately misleading testimony,” Laskin wrote.

“But when assessing the reliability of Totten’s opinion, I see nothing unfair in taking into account that the many serious problems in both Totten’s evidence and research, which were identified by the fresh evidence, remain entirely unexplained.”

It will be up to the Crown to decide if it actually wants to re-prosecute Abbey a third time. A spokesperson for the Ministry of the Attorney General declined to comment because the matter is “within the appeal period.” (The Crown has 30 days to decide if it wants to seek leave to appeal to the Supreme Court.)

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The Court of Appeal had harsh words for the position of the Crown in the appeal, given the fact that the “fresh evidence” — the issues with Totten’s research — was brought to the forefront under cross-examination by Crown attorney Mary Misener (now a judge) in a separate case, R v. Gager, where that time it was the defence trying to have Totten admitted as an expert.

The cross-examination took place during a hearing known as a voir dire, to determine if Totten should be qualified as an expert witness for the trial.

“Totten was the Crown’s witness, a key witness for the Crown (at the Abbey trial). Yet in Gager the Crown sought to impeach Totten’s credibility and the reliability of his evidence on several matters that were relevant to his opinion in this trial,” Laskin wrote.

“And then on this appeal the Crown made no attempt to contest the deficiencies, inaccuracies, and even falsehoods in Totten’s trial testimony, as demonstrated by the fresh evidence.

“The Crown is not an ordinary litigant. Its role is not to obtain a conviction, but to try to ensure a fair process and a just result. The Crown has impeached Totten, its own key witness, albeit in another proceeding, and yet by its silence in this proceeding must be taken not to have challenged the many serious problems in Totten’s trial testimony shown by the fresh evidence.”

The judge in the Gager case ultimately qualified Totten as a witness, despite expressing some reservations with his evidence, but neither side ended up calling him to the stand at trial.

“I made mistakes, there’s no question about that,” Totten told the Star at the time. “I’ve got no problem stating that. It’s the job of a lawyer to attack you as an expert witness. Some experts can handle it, others can’t. Obviously, I didn’t handle it very well.”

In Friday’s appeal decision, Laskin pointed out that the defence in the Abbey case could have raised the issues with Totten’s research at Abbey’s previous trial, but that it would be a “miscarriage of justice” not to admit the fresh evidence now because it is so compelling.

The appeal court went as far as saying that if the Crown had not been permitted to lead with Totten’s evidence on teardrop tattoos at the second trial, “it could reasonably be expected the verdict would have been different.”

Among the reasons for that conclusion, Laskin noted that the rest of the Crown’s case “was not overly strong,” which included poor eyewitness testimony and “problematic” evidence from three Malvern Crew members whose testimony implicated Abbey.

Their testimony “was severely compromised” by inconsistencies and “their unsavoury pasts,” Laskin wrote. He said two of them had been granted immunity by the Crown on a number of serious offences in exchange for their testimony, while the third member, who testified at the first Abbey trial, refused to testify at the second. His testimony from the first trial was read into the record at the second trial.