Aset Magomadova deemed unfit to stand trial in strangling death of her daughter

By Bill Kaufmann - Calgary Sun

Friday, October 18, 2013

Confessed daughter-slayer Aset Magomadova is too ill to endure a second-degree murder trial, a Court of Queen’s Bench justice ruled Friday.

Justice Suzanne Bensler concluded the woman’s chronic cervical cancer makes it unreasonable to expect her to properly withstand a five-week trial, a decision some are calling precedent-setting.

“I find the accused not physically capable and can’t give full answer to her defence,” she said.

“Given all the circumstances in this case there is no other remedy.”

Magomadova’s 2010 manslaughter conviction for strangling to death her troubled daughter Aminat on Feb. 26, 2007 was overturned and a second-degree murder trial ordered.

Earlier this month, an oncologist testified that though the spread of her cancer had halted for now, she would never recover and her death only a limited matter of time.

“The final decision in this case is very fact-driven — her life expectancy is short,” said Bensler.

As she read the grim series of events in the days and hours leading up to Aminat’s death, Magomadova on her gurney and family members in the court gallery wept.

Bensler said evidence given by Sun reporter Kevin Martin and CBC colleague Meghan Grant that they photographed Magomadova riding her motor scooter through northwest Calgary last spring was irrelevant given the woman’s chronic illness.

Issuing such a ruling, she acknowledged, couldn’t be lightly made.

“A judicial stay should be granted only in the clearest cases, it would mean Mrs. Magomadova would never stand trial for the death of her child,” said Bensler.

Defence lawyer Alain Hepner said Bensler went with her only option, but one that’ll set Canadian legal precedence.

“It’s very, very rare,” said Hepner.

Those scornful of the decision, he said, likely hadn’t sat through all the evidence.

The Crown will decide whether or not to appeal the decision, particularly given its future ramifications, said prosecutor Gary Cornfield.

“We’ll be looking at the precedential value of the decision,” he said.

Cornfield wouldn’t second-guess Bensler’s decision but said the gravity of the killing can’t be ignored.

“When you’re dealing with the death of another individual, ti’s almost always fit to pursue charges vigorously,” he said.

New trial ordered for mother who strangled daughter

GlobaltvCalgary.com

May 11, 2011

CALGARY — The province’s highest court has ordered a new trial on second-degree murder for a Calgary mother who strangled her 14-year-old daughter with a head scarf at their northeast home four years ago.

Alberta Court of Appeal Justices Peter Martin, Ellen Picard and Patricia Rowbotham were unanimous that the trial judge erred in law when he acquitted Aset Magomadova of second-degree murder in the death of Aminat on Feb. 26, 2007, and convicted her of manslaughter.

Court of Queen’s Bench Justice Sal LoVecchio, after his verdict last July, then suspended the sentence of Magomadova, 41, and placed her on probation for three years with conditions including counselling.

Trial Crown prosecutors Mac Vomberg and Sarah Bhola, who had sought a murder conviction, later argued for 12 years in prison on manslaughter.

The decision to not send the mother, a refugee from wartorn Chechnya where her husband was killed, prompted outrage among victims’ groups in Canada.

The suspended sentence also sparked much debate and controversy, with the vast majority of readers on the Herald’s website highly critical of the decision not to send the woman to jail.

Crown prosecutor Goran Tomljanovic made it clear from his argument that he did not believe it was an unjust verdict, but that the judge made findings of fact then did not properly apply the law to the facts.

“There’s no question this was a 14-year-old girl who was out of control, violent, destructive and provocative to those in authority, was abusing drugs and into prostitution,” Tomljanovic told the three-judge panel.

“The victim and the accused had a history of conflict that stretched over many months. There is no issue that the accused killed her daughter or how she did it: she strangled her with a scarf.”

However, Tomljanovic said the forensic pathologist’s evidence clearly showed a victim would lose consciousness in some 15 to 30 seconds and there must be a minimum two to five minutes of constant pressure to cause the death.

Having ruled out self-defence by Magomadova, who testified her daughter had come at her with a large knife in the sewing room, Tomljanovic said there is no explanation why she would continue to apply pressure to the scarf for such a long time after the girl was unconscious, unless she intended to kill the teen or at least cause bodily harm that could lead to death and was reckless.

“The trial judge weighed all of the evidence, rejected the knife argument, and said there was no self-defence or related defence succeeded,” said the prosecutor.

“He said, ‘I find it as a fact the victim was strangled for at least 2 minutes.’ That is the primary piece of evidence the Crown relies on that the trial judge applied the wrong test.”

However, defence lawyer Alain Hepner argued the judge erred in rejecting his client’s contention she had been attacked by her knife-wielding daughter and was defending herself.

He also said LoVecchio’s ruling that there was not a specific intent to kill, required to convict on a charge of murder, was a finding of fact that is not a ground of appeal.

“I believe Justice LoVecchio had all these issues on his mind when he made his ruling,” argued Hepner.

“He says we have to look at the whole constellation of factors and emotions in the history of the mother and daughter, that shows she didn’t appreciate her actions at the time. Her testimony was that she was reacting to her daughter’s aggression.”

Court heard during trial that Aset Magomadova, a refugee from Chechnya, came to Canada in 2003 with her daughter and wheelchair-bound teenage son, who has a rare form of muscular dystrophy.

Her husband had been killed in the war by Russian soldiers in 1995 and she later spent six months in jail in Chechnya after having part of her foot blown off.

On that fateful morning four years ago, Aminat refused to go to court to deal with sentencing for assaulting a school teacher, and an argument ensued.

The devout Muslim mother testified Aminat had attacked her with a knife.

She told court she reacted by wrapping the scarf around her neck and twice told the girl to put the knife down before she lost consciousness, then stopped immediately.

Police later found a knife in the room, but it did not have the daughter’s fingerprints on it.

LoVecchio had said jail was not necessary to meet the ends of justice.

“At first blush (a suspended sentence) may sound like a get-out-of-jail-free card. It is not,” said the judge in his ruling.

“The court has said the act in question does not merit a period of incarceration. What the court has done is reserved or ... ‘suspended’ judgment on that point for a period of time on conditions. If the conditions are satisfied, then the individual will not be sentenced. If they are breached, the individual will be brought back to the court to be dealt with further.”

The case will now be sent back to Court of Queen’s Bench to set a date for the new trial.

Verdict in daughter's killing stunned Calgarians

CalgaryHerald.com

December 27, 2010

A Calgary mother convicted of manslaughter in the strangling death of her 14-year-old daughter will face her first defence of a Crown appeal in May. The case of Aset Magomadova, who was earlier acquitted of second degree murder in the girl's death, sparked outrage when a judged ruled in July that she would not be jailed.

Magomadova, 41, was instead given a suspended sentence and three years probation with conditions to take counselling for grief, depression and anger management.

Alain Hepner, lawyer for Magomadova, said he will argue the judge's rulings should stand. "We are preparing to address the Crown's appeal on the acquittal of second-degree murder and to uphold the conviction for manslaughter," Hepner said recently.

He will also argue the sentence delivered by Justice Sal LoVecchio was appropriate given the circumstances.

Court heard that Magomadova strangled her daughter, Aminat, in 2007 after the teen refused to attend court for assaulting a teacher. Magomadova claimed Aminat came at her with a knife in the sewing room where the mother prayed several times a day.

She reacted by wrapping the scarf around her daughter's neck and twice told the girl to put down the knife before the teen lost consciousness, court heard.

LoVecchio, who had rejected a claim of self-defence in a 2008 ruling, ultimately determined Magomadova did not intend to kill the girl. "At first blush (a suspended sentence) may sound like a get-out-of-jail-free card. It is not," LoVecchio said when handing down his sentence in July.

Crown prosecutors Mac Vomberg and Sarah Bhola had argued for a 12-year prison term. The controversial sentencing and subsequent appeal was one of several notable cases at Court of Queen's Bench in Calgary in 2010.

Calgary mom who killed daughter gets probation

CBC News

July 15, 2010

A Calgary mother will not serve any jail time for strangling her teenage daughter, a judge ruled Thursday.

Aset Magomadova, who was convicted last fall of manslaughter, was instead given a suspended sentence and three years of probation.

Magomadova used a scarf to kill her troubled daughter, Aminat, 14, after a violent struggle in their southeast Calgary home in 2007.

The mother was acquitted of the original second-degree murder charge.

Crown prosecutor Mac Vomberg had asked the Court of Queen's Bench for a 12-year sentence, arguing that Magomadova abused her position of trust and authority and that her actions needed to be strongly condemned.

But Justice Sal LoVecchio, reading from his 25-page decision, said: "Showing mercy does not mean we approve of the act. It simply means sometimes a particular situation may demand a slightly different solution.

"At first blush that may sound like a get out of jail free card. It is not," the judge said, pointing out the suspended sentence will come with conditions that, if breached, would land Magomadova back in court.

Under those conditions, the judge said Magomadova:

• Must seek counselling and treatment for anger management, depression, bereavement and grief.

• Cannot own any weapons.

• Must provide a blood sample for registration with the national DNA database.

• Must keep the peace and be of good behaviour.

• Must appear in court when required.

"We're relieved at the compassion and mercy that has been shown," said Marilyn Millions, a friend of the Magomadova family.

Traumatic background

During sentencing arguments last month, defence lawyer Alain Hepner urged the judge to take into account Magomadova's "catastrophic" background.

Magomadova came to Canada from war-torn Chechnya in 2003. Her husband was killed in the conflict while she was pregnant with her son. Her son was later diagnosed with a severe form of muscular dystrophy.

"It was a very traumatic three years," Hepner said after the sentencing. "Probably it will be traumatic for the rest of her life in terms of what she has done."

During the judge-only trial, Aminat was portrayed as an out-of-control teen who had threatened to stab other students and boasted about drug use, stealing and having sex.

"We're really relieved that Aset has not received a jail sentence," Millions said. "The family's hope is that mental health services for young people will be improved and changed because of this so that others do not fall through the cracks as Aminat did."

"It was a complicated case in terms of emotion and law," Vomberg said, adding that no decision has been made yet on whether to appeal the sentence.

"That's not up to myself. That's up to another branch of Alberta Justice."

Calgary mother guilty of manslaughter in daughter's death

CBC News

October 07, 2009

A Calgary mother has been convicted of manslaughter in the strangulation of her 14-year-old daughter.

Aset Magomadova, 39, pleaded not guilty to second-degree murder in the death of daughter Aminat on Feb. 26, 2007.

On Wednesday, Justice Sal LoVecchio said the Crown did not prove beyond a reasonable doubt that Magomadova intended to kill Aminat, and found the mother guilty of the lesser charge of manslaughter.

The mother, "in an impulsive moment, may have simply lost it," the Court of Queen's bench judge said.

Magomadova showed no emotion as the decision was handed down.

"As she said on the stand, this in some ways it really doesn't matter," her lawyer, Mark Tyndale, told reporters outside the courtroom. "Yes, it affects the rest of her life, but her daughter is still dead, and that to her is the largest punishment that could ever be imposed."

Tyndale had asked for an acquittal, arguing his client was defending herself against an out-of-control teen. The judge-only trial heard of Aminat's troubled history of threatening to stab other students, running away from home, and boasting about drug use and stealing.

The teen had also pleaded guilty to assaulting a teacher.

On the day of the killing, the mother and daughter were arguing in their home because the teenager didn't want to go to a court appearance.

Aset wrapped a scarf around the girl's neck in an attempt to get her to drop a knife, Tyndale alleged.

However, Crown prosecutor Mac Vomberg argued that Magomadova was the aggressor, portraying her as a mother who had reached a breaking point with a rebellious child. He emphasized expert testimony that it took between 2½ and five minutes for the girl to die.

LoVecchio rejected the claim of self defence, and did not believe a knife was involved. He said the use of the scarf was inappropriate and troublesome, but did not believe Magomadova intended to kill her daughter.

Social system failed teen

Magomadova will remain free on bail until Oct. 16, when a date is set for sentencing. The Crown questioned whether bail was appropriate.

"This is a very serious event. There's significant likelihood that she will be in jail for a long period of time and it's something the Crown considers should be reviewed by the court when there is a conviction of manslaughter," said Vomberg.

Magomadova came to Canada from war-torn Chechnya in 2004 with her sister, as well as her own two children: Aminat, and a teenage son with muscular dystrophy.

Aminat was not able to get the kind of help she needed, Tyndale said on Wednesday.

"There were a series of concerted cries for help from every authority here — the police, probations, the schools, social services and especially child welfare and not one of those bodies adequately dealt with this," said the defence lawyer.

"Not one of them responded to the call for the help. Not one of them dealt with Aminat in terms of getting her counselling and taking care of this sort of seething anger she had."