This has been a logn time coming ... convicted in 1975, reviewed in 2008...
Wrongfully convicted man sues for compensation
By CBC News
After a long wait, Erin Michael Walsh will finally be back in a Saint John courtroom on Tuesday as he fights for compensation after being wrongfully convicted of murder.
After a long wait, Erin Michael Walsh will finally be back in a Saint John courtroom on Tuesday as he fights for compensation after being wrongfully convicted of murder.
Walsh's 1975 conviction was overturned by the New Brunswick Court of Appeal in 2008. He is suing the province, the Saint John city police and William McCarroll, a sitting judge who was the Crown prosecutor at the time, for compensation.
Walsh, who is dying of colon cancer, argues he was deprived of a fair trial because key pieces of evidence were not disclosed that would have exonerated him at his original trial.
Meanwhile, the provincial government has argued that while Walsh didn't get a fair trial, it had reasonable grounds to accuse him.
The civil trial is expected to last five weeks.
Walsh was convicted of murdering Melvin (Chi Chi) Peters in August 1975.
At the time Walsh, who has a long criminal record, was travelling from Toronto.
He arrived in Saint John and met up with a group that included Peters for drinks at a beach in the city's south end.
When leaving the area, a fight broke out in a car, a shotgun went off and Peters was killed.
1975 jury convicted him in 1 hour
At Walsh's trial in 1975, prosecutors presented the case as open and shut, and the jury took only one hour to convict him of second-degree murder and hand him a life sentence.
After several of Walsh's earlier appeals were denied, federal Justice Minister Rob Nicholson ordered the conviction be reviewed in light of new evidence in February 2008.
The evidence, obtained by Walsh as part of a 2005 access to information request, included a report of jailhouse conversations that suggested someone else shot Peters.
Documents filed with the appeal court indicated that McCarroll, the former Crown prosecutor, later told John Briggs, the federal investigator hired to review the Walsh case, that he did disclose the cell block conversations.
McCarroll told Briggs that the defence must have opted not to use the reports because: "This is a bunch of drunks that are jabbering."
The federal investigator said if Walsh's trial lawyers had full disclosure as McCarroll claims, those facts would have been reflected in examinations at the preliminary hearing or at trial.
"A review of those transcripts suggests that both counsel were simply lacking in the knowledge that they would have had if, in fact, they had received complete disclosure," the Briggs report said.
When the Court of Appeal quashed Walsh's conviction, it said the conversations in the cell blocks and police statements of other Crown witnesses "would most assuredly have gone a long way in convincing a jury about the unreliability of the main Crown witnesses?. The lack of disclosure of their statements to the police, by itself, would be sufficient to raise a trial fairness issue resulting in a miscarriage of justice."
Tuesday, October 13, 2009
Monday, October 12, 2009
Former prosecutor has cases re-examined
Another case of prosecutorial misconduct? ...
South Florida Sun-Sentinel.com
Ex-prosecutor Robert Carney draws scrutiny over disputed murder cases
By Paula McMahon. October 11, 2009
For five years, Robert Carney, a Vietnam-era Marine, represented the people of Broward County in murder cases, a prosecutor's gravest responsibility. It was his duty to bring killers to account, to seek justice and the truth in cases where the defendant faced life in prison or the ultimate penalty — execution.A brainy, aggressive prosecutor, Carney became known around the courthouse for his ability to look jurors in the eye and deliver his closing arguments without notes. He was later appointed to a judgeship, a position he announced in August he will retire from at the end of this year.As Carney, 62, spends his final months in judicial robes, though, hard questions have arisen about his role in four murder cases from the 1980s.Those cases were thrown out on appeal, disproved by DNA evidence or have become marred by serious doubt that justice was truly done."The public should absolutely be concerned any time you have one person involved in a single wrongful conviction," said Seth Miller, executive director of the Innocence Project of Florida, a Tallahassee-based organization that investigates claims of innocence."When someone has been involved with four wrongful convictions, it is something that deserves further scrutiny," Miller said.As a homicide prosecutor, Carney played a major part in three Broward murder cases — against John Purvis, Anthony Caravella and Christopher Clugston — that were thrown out by appeals courts or in which the validity of the convictions has been greatly undermined. He also played a lesser role in one of Florida's most notorious wrongful convictions, that of Frank Lee Smith.Carney declined to be interviewed by the Sun Sentinel in person or by phone for this story, but agreed to make some comments by e-mail. He declined to discuss details of the cases."It is easy to sit as a Monday morning quarterback and judge from a perspective 25 years later with information unknown at the time of prosecution," Carney wrote.Two of the cases involve unconnected murders committed days apart in November 1983, in Miramar and Fort Lauderdale. Both were assigned to Carney, who won swift convictions of Purvis and Caravella.One of those long-ago convictions is now back in the news. Caravella was released from prison Sept. 10 after DNA tests cast doubt on his guilt. More testing is being done that could lead to his exoneration.Both prosecutions were built on the shaky foundations of incriminating confessions. Purvis was schizophrenic, with the mental capacity of an 8-year-old. Caravella was 15 and had an IQ of 67. In both instances, Carney sought the death penalty but jurors voted for life in prison.Questions have arisen in the two cases about whether Carney should have turned over evidence to the defense that might have set off alarms about the reliability of the confessions and the strength of the state's case.Purvis' conviction took nearly 10 years to fall apart; Caravella's may be unraveling 26 years later.Carney said two juries were convinced of both men's guilt."Twelve people unanimously, in both cases attributable to me, found there was no reasonable doubt. That is how the system works," Carney wrote. "The 'new' evidence came to light long after trial and could not have been reasonably known before trial. In Caravella, the [DNA] science was not available in 1983," he wrote.Prosecutors play a key role in the justice system, Carney said, but are not the only players. Judges monitored his conduct; each accused man had an attorney; juries indicted and later convicted both defendants; and appeals courts initially upheld the convictions, he said."Yet in spite of these safeguards, the system is not perfect and, on occasion, there is a bad result," Carney wrote. "When it happens it is a stark reminder to all of us of the gravity of what we do. If an innocent person serves time for a crime he or she did not commit, this is a terrible thing and is felt deeply by all who are involved in the process."Some of the defense attorneys involved in the four murder cases said that they lay more of the blame for what has happened on police — who initially targeted the suspects and interrogated them — than on Carney.Carolyn McCann, the prosecutor who is handling the Caravella appeal and is familiar with some of the other cases, said Carney is an honorable person.Broward prosecutors have worked to correct any issues in cases he handled, as well as others, as soon as problems became known, she said."I don't believe any prosecutor, including Rob Carney, would ever want to convict an innocent person," McCann said. If Caravella is exonerated, Steven Drizin, a law professor with the Center on Wrongful Convictions at Northwestern University, said there should be an independent investigation of every aspect of the case."It's way too early to focus blame on a single [person in the justice system]," Drizin said. "Often these cases are a total system meltdown beginning with the police, moving on to the prosecutor and defense attorney and ultimately to the judiciary and the jury."Drizin added: "What is striking to me is we're talking about a death penalty case against a 15-year-old. You'd think every effort would have been made to ensure it was being done right."Carney was a Broward prosecutor for nine years and has spent 24 years on the bench. Once dubbed "the jumping judge" because of his love of sky diving, he is regarded as intelligent and organized. He was known as one of the county's top prosecutors, tough but persuasive, and with evident ambitions to earn a black robe. His record as a prosecutor is still being assessed.Ed McGee, who was a prosecutor with Carney in the 1970s, later defended a homicide case Carney prosecuted, and has represented clients before him as a judge. He said Carney is a "straight shooter" and "takes his job very seriously and does it very, very, very well."Staff Researcher Barbara Hijek contributed to this report.Paula McMahon can be reached at pmcmahon@SunSentinel.com or 954-356-4533.
Anthony Caravella Convicted of: Rape and first-degree murder Time served: Close to 26 years Date released:Sept. 10
John Purvis Convicted of: Rape and first-degree murder; second-degree murder Time served: 9 years Date released:1993
Christopher Clugston Convicted of: First-degree murder Time served: 11 yearsDate released:1994
Frank Lee Smith Convicted of: Rape and first-degree murder Time served: 15 years Date released:Died of cancer in 2000, while still on Death Row
Copyright © 2009, South Florida Sun-Sentinel
sun-sentinel.com/news/broward/sfl-carney-caravella-b101109pnoct11,0,7079248.story
South Florida Sun-Sentinel.com
Ex-prosecutor Robert Carney draws scrutiny over disputed murder cases
By Paula McMahon. October 11, 2009
For five years, Robert Carney, a Vietnam-era Marine, represented the people of Broward County in murder cases, a prosecutor's gravest responsibility. It was his duty to bring killers to account, to seek justice and the truth in cases where the defendant faced life in prison or the ultimate penalty — execution.A brainy, aggressive prosecutor, Carney became known around the courthouse for his ability to look jurors in the eye and deliver his closing arguments without notes. He was later appointed to a judgeship, a position he announced in August he will retire from at the end of this year.As Carney, 62, spends his final months in judicial robes, though, hard questions have arisen about his role in four murder cases from the 1980s.Those cases were thrown out on appeal, disproved by DNA evidence or have become marred by serious doubt that justice was truly done."The public should absolutely be concerned any time you have one person involved in a single wrongful conviction," said Seth Miller, executive director of the Innocence Project of Florida, a Tallahassee-based organization that investigates claims of innocence."When someone has been involved with four wrongful convictions, it is something that deserves further scrutiny," Miller said.As a homicide prosecutor, Carney played a major part in three Broward murder cases — against John Purvis, Anthony Caravella and Christopher Clugston — that were thrown out by appeals courts or in which the validity of the convictions has been greatly undermined. He also played a lesser role in one of Florida's most notorious wrongful convictions, that of Frank Lee Smith.Carney declined to be interviewed by the Sun Sentinel in person or by phone for this story, but agreed to make some comments by e-mail. He declined to discuss details of the cases."It is easy to sit as a Monday morning quarterback and judge from a perspective 25 years later with information unknown at the time of prosecution," Carney wrote.Two of the cases involve unconnected murders committed days apart in November 1983, in Miramar and Fort Lauderdale. Both were assigned to Carney, who won swift convictions of Purvis and Caravella.One of those long-ago convictions is now back in the news. Caravella was released from prison Sept. 10 after DNA tests cast doubt on his guilt. More testing is being done that could lead to his exoneration.Both prosecutions were built on the shaky foundations of incriminating confessions. Purvis was schizophrenic, with the mental capacity of an 8-year-old. Caravella was 15 and had an IQ of 67. In both instances, Carney sought the death penalty but jurors voted for life in prison.Questions have arisen in the two cases about whether Carney should have turned over evidence to the defense that might have set off alarms about the reliability of the confessions and the strength of the state's case.Purvis' conviction took nearly 10 years to fall apart; Caravella's may be unraveling 26 years later.Carney said two juries were convinced of both men's guilt."Twelve people unanimously, in both cases attributable to me, found there was no reasonable doubt. That is how the system works," Carney wrote. "The 'new' evidence came to light long after trial and could not have been reasonably known before trial. In Caravella, the [DNA] science was not available in 1983," he wrote.Prosecutors play a key role in the justice system, Carney said, but are not the only players. Judges monitored his conduct; each accused man had an attorney; juries indicted and later convicted both defendants; and appeals courts initially upheld the convictions, he said."Yet in spite of these safeguards, the system is not perfect and, on occasion, there is a bad result," Carney wrote. "When it happens it is a stark reminder to all of us of the gravity of what we do. If an innocent person serves time for a crime he or she did not commit, this is a terrible thing and is felt deeply by all who are involved in the process."Some of the defense attorneys involved in the four murder cases said that they lay more of the blame for what has happened on police — who initially targeted the suspects and interrogated them — than on Carney.Carolyn McCann, the prosecutor who is handling the Caravella appeal and is familiar with some of the other cases, said Carney is an honorable person.Broward prosecutors have worked to correct any issues in cases he handled, as well as others, as soon as problems became known, she said."I don't believe any prosecutor, including Rob Carney, would ever want to convict an innocent person," McCann said. If Caravella is exonerated, Steven Drizin, a law professor with the Center on Wrongful Convictions at Northwestern University, said there should be an independent investigation of every aspect of the case."It's way too early to focus blame on a single [person in the justice system]," Drizin said. "Often these cases are a total system meltdown beginning with the police, moving on to the prosecutor and defense attorney and ultimately to the judiciary and the jury."Drizin added: "What is striking to me is we're talking about a death penalty case against a 15-year-old. You'd think every effort would have been made to ensure it was being done right."Carney was a Broward prosecutor for nine years and has spent 24 years on the bench. Once dubbed "the jumping judge" because of his love of sky diving, he is regarded as intelligent and organized. He was known as one of the county's top prosecutors, tough but persuasive, and with evident ambitions to earn a black robe. His record as a prosecutor is still being assessed.Ed McGee, who was a prosecutor with Carney in the 1970s, later defended a homicide case Carney prosecuted, and has represented clients before him as a judge. He said Carney is a "straight shooter" and "takes his job very seriously and does it very, very, very well."Staff Researcher Barbara Hijek contributed to this report.Paula McMahon can be reached at pmcmahon@SunSentinel.com or 954-356-4533.
Anthony Caravella Convicted of: Rape and first-degree murder Time served: Close to 26 years Date released:Sept. 10
John Purvis Convicted of: Rape and first-degree murder; second-degree murder Time served: 9 years Date released:1993
Christopher Clugston Convicted of: First-degree murder Time served: 11 yearsDate released:1994
Frank Lee Smith Convicted of: Rape and first-degree murder Time served: 15 years Date released:Died of cancer in 2000, while still on Death Row
Copyright © 2009, South Florida Sun-Sentinel
sun-sentinel.com/news/broward/sfl-carney-caravella-b101109pnoct11,0,7079248.story
Sunday, October 11, 2009
FBI sued after wrongful arrest
This article doesn't mention 'racial profiling', but does begin to show how the innocent can confess to something they didn't do ...
In settlement with Egyptian man wrongfully arrested after 9/11, FBI pays him $250,000
By LARRY NEUMEISTER , Associated Press, September 24, 2009
NEW YORK - The FBI paid $250,000 this week to an Egyptian man detained when a pilot's aviation radio was found after the Sept. 11 attacks in his hotel room overlooking the World Trade Center, his lawyer said Thursday.
A judge approved the payment to Abdallah Higazy in July and the money was delivered this week, according to the lawyer, Jonathan S. Abady.
Higazy, 38, had sued the FBI, saying an FBI agent screamed at him, lied to him and threatened to endanger his family, leading him to offer several ways the radio got in his room and causing him to be unjustly criminally charged and imprisoned for 34 days.
Higazy, the son of an Egyptian diplomat, was charged with making false statements after a handheld pilot radio was found in a safe in the room where he stayed on Sept. 11. He was detained in December 2001 after he returned to reclaim his belongings from the hotel he had fled during the attacks.
He was freed in January 2002 after another hotel guest, a pilot, told hotel officials the radio belonged to him.
His lawsuit against the FBI agent who questioned him was thrown out by a lower court judge but was reinstated two years ago by the 2nd U.S. Circuit Court of Appeals in Manhattan.
Janice Oh, a spokeswoman for government lawyers, declined to comment. The government did not admit liability or fault as part of the agreement.
Higazy married an American and returned to Egypt, where he lives in Cairo and works as an assistant grade school principal, Abady said.
"He was entirely innocent and was coerced to the point where he confessed to participation in the crime of the century," the lawyer said.
"Had the pilot not returned to retrieve the radio, he might still be in prison. It's a very scary example of the potential excesses of law enforcement in the pursuit of a legitimate goal," Abady said.
The lawyer said Higazy was pleased to put the ordeal behind him but found the resolution bittersweet.
"I don't think there's any amount of money that could return him to the way he was before this happened," he said.
"I think this is still a traumatic memory that will never leave him completely. He still hesitates to return to the United States," Abady added. "I think he still has concerns about being in the FBI database and being potentially the subject of another mistake."
In settlement with Egyptian man wrongfully arrested after 9/11, FBI pays him $250,000
By LARRY NEUMEISTER , Associated Press, September 24, 2009
NEW YORK - The FBI paid $250,000 this week to an Egyptian man detained when a pilot's aviation radio was found after the Sept. 11 attacks in his hotel room overlooking the World Trade Center, his lawyer said Thursday.
A judge approved the payment to Abdallah Higazy in July and the money was delivered this week, according to the lawyer, Jonathan S. Abady.
Higazy, 38, had sued the FBI, saying an FBI agent screamed at him, lied to him and threatened to endanger his family, leading him to offer several ways the radio got in his room and causing him to be unjustly criminally charged and imprisoned for 34 days.
Higazy, the son of an Egyptian diplomat, was charged with making false statements after a handheld pilot radio was found in a safe in the room where he stayed on Sept. 11. He was detained in December 2001 after he returned to reclaim his belongings from the hotel he had fled during the attacks.
He was freed in January 2002 after another hotel guest, a pilot, told hotel officials the radio belonged to him.
His lawsuit against the FBI agent who questioned him was thrown out by a lower court judge but was reinstated two years ago by the 2nd U.S. Circuit Court of Appeals in Manhattan.
Janice Oh, a spokeswoman for government lawyers, declined to comment. The government did not admit liability or fault as part of the agreement.
Higazy married an American and returned to Egypt, where he lives in Cairo and works as an assistant grade school principal, Abady said.
"He was entirely innocent and was coerced to the point where he confessed to participation in the crime of the century," the lawyer said.
"Had the pilot not returned to retrieve the radio, he might still be in prison. It's a very scary example of the potential excesses of law enforcement in the pursuit of a legitimate goal," Abady said.
The lawyer said Higazy was pleased to put the ordeal behind him but found the resolution bittersweet.
"I don't think there's any amount of money that could return him to the way he was before this happened," he said.
"I think this is still a traumatic memory that will never leave him completely. He still hesitates to return to the United States," Abady added. "I think he still has concerns about being in the FBI database and being potentially the subject of another mistake."
Friday, October 9, 2009
Doubt cast on police technique in Canada
I have been waiting for a study of this technique for some time, and to see that it is associated with Unger ...
Study casts further doubt on 'Mr. Big' technique
Confessions gained by cops posing as violent gangsters opposed by critics, but lauded by police
By Ian Mulgrew, Vancouver SunOctober 7, 2009
The RCMP's "Mr. Big" stings have been slammed by a Simon Fraser University study looking at the likelihood they nab the innocent as often as the guilty.
There's nothing new in the complaint.
Not only have those caught in these controversial snares howled in outrage, but also West Vancouver's Tiffany Burns produced a fine documentary in 2007 about the problem this technique poses to the justice system.
Her brother, Sebastian Burns, was convicted of murder in the horrendous slaughter of a family in the suburbs of Seattle in 1994 largely because of a Mr. Big operation.
He and Atif Rafay, who were living in North Vancouver at the time, are imprisoned in the U.S. for slaying Rafay's parents and sister for a substantial inheritance.
Burns, a former model and TV anchor, thinks they were railroaded because of the weight given a Mr. Big scenario.
Kouri Keenan, an SFU criminology student from Fredericton, N.B., who graduates on Thursday to begin his PhD, analysed 63 cases in which the scams were utilized and thinks they need to be reconsidered.
In the Mr. Big ruse, undercover police pose as criminals to trick suspects into confessing crimes to a fake mob boss.
Like Burns, Keenan said he has serious misgivings about the technique, which is not allowed in the U.S. or the United Kingdom.
I can understand why, having sat through a handful of these cases and witnessed the Hollywood-like performances by police portraying "gangsters."
In these situations, suspects are frightened by choreographed beatings, kidnappings and murders. Their confessions are extracted using intimidation, psychological manipulation, threats and promises of wealth and protection.
Many, many critics have called for the courts in Canada to prohibit these tactics.
There were renewed calls in February for them to be reviewed after the prosecution of two men in Mayerthorpe, Alta., convicted of manslaughter in the death of four Mounties gunned down by weirdo James Roszko.
But the Supreme Court of Canada has ruled that since criminals don't play by the rules, the police can be excused the occasional subterfuge.
Lawyer Daniel Brodsky, of the Toronto-based Association in Defence of the Wrongly Convicted, puts it this way: "The question we have about Mr. Big is: 'Is it a dirty trick?' How do you tell whether it is somebody who has made up a statement in order to win a king's ransom?"
The association has been reviewing Mr. Big cases with an eye on the reliability of statements made to undercover police.
Keenan said in his study that confessions in Mr. Big cases "are inherently unreliable because they're being made to undercover police officers who portray themselves as members of a sophisticated and wealthy criminal syndicate ... these role-playing scenarios undermine many of the fundamental principles of justice and exceed professional, ethical and even moral boundaries."
The RCMP claim Mr. Big operations cost anywhere from $100,000 to $300,000, but Keenan said he found several operations that exceeded $2 million.
His thesis, which he has adapted into a book, recommends a number of legal reforms but they are unlikely to be adopted -- the Mounties celebrate Mr. Big as one of the most successful techniques ever.
"What's going to have to happen," Keenan said, "is a wrongful conviction directly attributable to a Mr. Big operation."
He thinks that will come soon in the case of Kyle Wayne Unger, who spent 14 years in jail after being convicted in the brutal 1990 murder of a Manitoba teen, largely as the result of a Mr. Big confession.
Unger was released last March after DNA cast doubt on his guilt and federal Justice Minister Rob Nicholson is reviewing his case.
"It's likely the case will be overturned," Keenan said, "which will have serious ramifications for all Mr. Big cases where only a confession led to a guilty conviction."
imulgrew@vancouversun.com
© Copyright (c) The Vancouver Sun
Originally available at http://www.vancouversun.com/sports/Study+casts+further+doubt+technique/2075091/story.html#
Study casts further doubt on 'Mr. Big' technique
Confessions gained by cops posing as violent gangsters opposed by critics, but lauded by police
By Ian Mulgrew, Vancouver SunOctober 7, 2009
The RCMP's "Mr. Big" stings have been slammed by a Simon Fraser University study looking at the likelihood they nab the innocent as often as the guilty.
There's nothing new in the complaint.
Not only have those caught in these controversial snares howled in outrage, but also West Vancouver's Tiffany Burns produced a fine documentary in 2007 about the problem this technique poses to the justice system.
Her brother, Sebastian Burns, was convicted of murder in the horrendous slaughter of a family in the suburbs of Seattle in 1994 largely because of a Mr. Big operation.
He and Atif Rafay, who were living in North Vancouver at the time, are imprisoned in the U.S. for slaying Rafay's parents and sister for a substantial inheritance.
Burns, a former model and TV anchor, thinks they were railroaded because of the weight given a Mr. Big scenario.
Kouri Keenan, an SFU criminology student from Fredericton, N.B., who graduates on Thursday to begin his PhD, analysed 63 cases in which the scams were utilized and thinks they need to be reconsidered.
In the Mr. Big ruse, undercover police pose as criminals to trick suspects into confessing crimes to a fake mob boss.
Like Burns, Keenan said he has serious misgivings about the technique, which is not allowed in the U.S. or the United Kingdom.
I can understand why, having sat through a handful of these cases and witnessed the Hollywood-like performances by police portraying "gangsters."
In these situations, suspects are frightened by choreographed beatings, kidnappings and murders. Their confessions are extracted using intimidation, psychological manipulation, threats and promises of wealth and protection.
Many, many critics have called for the courts in Canada to prohibit these tactics.
There were renewed calls in February for them to be reviewed after the prosecution of two men in Mayerthorpe, Alta., convicted of manslaughter in the death of four Mounties gunned down by weirdo James Roszko.
But the Supreme Court of Canada has ruled that since criminals don't play by the rules, the police can be excused the occasional subterfuge.
Lawyer Daniel Brodsky, of the Toronto-based Association in Defence of the Wrongly Convicted, puts it this way: "The question we have about Mr. Big is: 'Is it a dirty trick?' How do you tell whether it is somebody who has made up a statement in order to win a king's ransom?"
The association has been reviewing Mr. Big cases with an eye on the reliability of statements made to undercover police.
Keenan said in his study that confessions in Mr. Big cases "are inherently unreliable because they're being made to undercover police officers who portray themselves as members of a sophisticated and wealthy criminal syndicate ... these role-playing scenarios undermine many of the fundamental principles of justice and exceed professional, ethical and even moral boundaries."
The RCMP claim Mr. Big operations cost anywhere from $100,000 to $300,000, but Keenan said he found several operations that exceeded $2 million.
His thesis, which he has adapted into a book, recommends a number of legal reforms but they are unlikely to be adopted -- the Mounties celebrate Mr. Big as one of the most successful techniques ever.
"What's going to have to happen," Keenan said, "is a wrongful conviction directly attributable to a Mr. Big operation."
He thinks that will come soon in the case of Kyle Wayne Unger, who spent 14 years in jail after being convicted in the brutal 1990 murder of a Manitoba teen, largely as the result of a Mr. Big confession.
Unger was released last March after DNA cast doubt on his guilt and federal Justice Minister Rob Nicholson is reviewing his case.
"It's likely the case will be overturned," Keenan said, "which will have serious ramifications for all Mr. Big cases where only a confession led to a guilty conviction."
imulgrew@vancouversun.com
© Copyright (c) The Vancouver Sun
Originally available at http://www.vancouversun.com/sports/Study+casts+further+doubt+technique/2075091/story.html#
Due process no protection in US?
There are some good statistics here on the likelihood that eyewitness misidentification, for example, results in a fale conviction. Better procedures and training need to be put in place for police and prosecutors ...
'Due process' often sends the innocent to jail
By RONALD FRASER Guest Columnist
Published: Tuesday, October 6, 2009 in the Herald Tribune
On paper at least, the Constitution's "due process" clause is the citizen's guarantee against wrongful conviction and imprisonment. But once inside a courtroom, all bets are off. Research shows that eyewitness misidentification, false confessions and government use of snitches as witnesses -- all part of due process -- too often put innocent people behind bars.AC = -->
According to Innocence Project attorneys at the Cardozo School of Law in New York City, courts in 34 states have used DNA testing to reverse more than 230 criminal convictions and free wrongly convicted persons who, on average, spent 12 years in prison.
In Florida, 10 prior convictions have been nullified. The state's first reversal took place in 2000 but was too late to free Frank Lee Smith, who died of cancer in prison after serving 14 years for a murder he did not commit. In part, Smith was convicted based on eyewitness testimony that he was seen leaving the scene of the crime.
The latest reversal in Florida occurred in 2008 when, after serving 26 years in prison, William Dillon was cleared of a 1981 murder conviction. Prosecutors had used eyewitness testimony from a former girlfriend that placed Dillon at the crime scene and the testimony of a jailhouse snitch who said Dillon admitted guilt while in jail awaiting trial.
These cases expose serious breakdowns in America's justice systems. If the courtroom failures found in these cases are at work in all state and local justice systems, what good are constitutional guarantees?
Each year many thousands of cases are decided in which DNA evidence is not available as a technical check on the reliability of traditional evidence. In these cases a person's guilt or innocence may very well be determined by error-prone eyewitness testimony, unreliable forensic procedures, government snitches and false, self-incriminating statements often obtained under heavy duress.
"These DNA exoneration cases," says the Innocence Project, "have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed."
Eyewitness misidentification testimony was a factor in 74 percent of post-conviction DNA exoneration cases, making it the leading cause of these wrongful convictions. And two in five of these eyewitness identifications involved cross-racial identification. Studies have shown that people are less able to recognize faces of a different race than their own.
Traditional eyewitness identification procedures are known to give unintended clues that result in misidentifications. The project recommends using double-blind lineups, where neither the witness nor the lineup administrators know the suspect.
Invalidated forensic evidence played a role in about 50 percent of the wrongful convictions later overturned by DNA testing. Unlike DNA testing, which is based on solid scientific research, according to the project, other forensic techniques used in courtrooms, such as hair microscopy, bite-mark comparisons and shoe-print comparisons have never been subjected to rigorous scientific evaluation.
In addition to the need to validate all forensic techniques scientifically, the technicians using techniques that are already validated, such as blood typing, need to be well trained to ensure that test results are accurate.
False confessions lead to wrongful convictions in approximately 25 percent of the cases, many involving defendants under 18 years of age or younger or developmentally disabled persons. To prevent coercion and to provide an accurate record, all police interrogations should be electronically recorded, says the project. In homicide cases, the states of Illinois, Maine and New Mexico already require taping of interrogations.
Snitches contributed to wrongful conviction in 16 percent of the cases. Snitch testimony is unreliable because it may be offered in return for deals, special treatment or the dropping of charges. All communications between snitches and prosecutors should be recorded and judges should instruct juries that snitch testimony is unreliable.
Governments exist to protect the rights of individuals. But when federal, state and local government prosecutors and judges knowingly tolerate judicial processes that violate the constitutional rights of citizens they, themselves, become rights violators.
Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington- based civil liberties organization. E-mail: fraserr@erols.com
Originally available at http://www.heraldtribune.com/article/20091006/COLUMNIST/910061013/2127?Title=-Due-process-often-sends-the-innocent-to-jail
'Due process' often sends the innocent to jail
By RONALD FRASER Guest Columnist
Published: Tuesday, October 6, 2009 in the Herald Tribune
On paper at least, the Constitution's "due process" clause is the citizen's guarantee against wrongful conviction and imprisonment. But once inside a courtroom, all bets are off. Research shows that eyewitness misidentification, false confessions and government use of snitches as witnesses -- all part of due process -- too often put innocent people behind bars.AC = -->
According to Innocence Project attorneys at the Cardozo School of Law in New York City, courts in 34 states have used DNA testing to reverse more than 230 criminal convictions and free wrongly convicted persons who, on average, spent 12 years in prison.
In Florida, 10 prior convictions have been nullified. The state's first reversal took place in 2000 but was too late to free Frank Lee Smith, who died of cancer in prison after serving 14 years for a murder he did not commit. In part, Smith was convicted based on eyewitness testimony that he was seen leaving the scene of the crime.
The latest reversal in Florida occurred in 2008 when, after serving 26 years in prison, William Dillon was cleared of a 1981 murder conviction. Prosecutors had used eyewitness testimony from a former girlfriend that placed Dillon at the crime scene and the testimony of a jailhouse snitch who said Dillon admitted guilt while in jail awaiting trial.
These cases expose serious breakdowns in America's justice systems. If the courtroom failures found in these cases are at work in all state and local justice systems, what good are constitutional guarantees?
Each year many thousands of cases are decided in which DNA evidence is not available as a technical check on the reliability of traditional evidence. In these cases a person's guilt or innocence may very well be determined by error-prone eyewitness testimony, unreliable forensic procedures, government snitches and false, self-incriminating statements often obtained under heavy duress.
"These DNA exoneration cases," says the Innocence Project, "have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed."
Eyewitness misidentification testimony was a factor in 74 percent of post-conviction DNA exoneration cases, making it the leading cause of these wrongful convictions. And two in five of these eyewitness identifications involved cross-racial identification. Studies have shown that people are less able to recognize faces of a different race than their own.
Traditional eyewitness identification procedures are known to give unintended clues that result in misidentifications. The project recommends using double-blind lineups, where neither the witness nor the lineup administrators know the suspect.
Invalidated forensic evidence played a role in about 50 percent of the wrongful convictions later overturned by DNA testing. Unlike DNA testing, which is based on solid scientific research, according to the project, other forensic techniques used in courtrooms, such as hair microscopy, bite-mark comparisons and shoe-print comparisons have never been subjected to rigorous scientific evaluation.
In addition to the need to validate all forensic techniques scientifically, the technicians using techniques that are already validated, such as blood typing, need to be well trained to ensure that test results are accurate.
False confessions lead to wrongful convictions in approximately 25 percent of the cases, many involving defendants under 18 years of age or younger or developmentally disabled persons. To prevent coercion and to provide an accurate record, all police interrogations should be electronically recorded, says the project. In homicide cases, the states of Illinois, Maine and New Mexico already require taping of interrogations.
Snitches contributed to wrongful conviction in 16 percent of the cases. Snitch testimony is unreliable because it may be offered in return for deals, special treatment or the dropping of charges. All communications between snitches and prosecutors should be recorded and judges should instruct juries that snitch testimony is unreliable.
Governments exist to protect the rights of individuals. But when federal, state and local government prosecutors and judges knowingly tolerate judicial processes that violate the constitutional rights of citizens they, themselves, become rights violators.
Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington- based civil liberties organization. E-mail: fraserr@erols.com
Originally available at http://www.heraldtribune.com/article/20091006/COLUMNIST/910061013/2127?Title=-Due-process-often-sends-the-innocent-to-jail
Wednesday, October 7, 2009
A funeral for the first accused ...
...what I mean by this is that Marshall really stands as the first case, for most people, of the wrongfully accused in Canada ...
Funeral for Mi'kmaq icon held in Nova Scotia.
Canwest News ServiceAugust 9, 2009
SYDNEY, N.S. - Mourners gathered at a Sydney, N.S. church Monday for the funeral of Donald Marshall Jr., - a Nova Scotia Mi'kmaq icon -who died Thursday due to complications arising from a double-lung transplant operation.
The 55 year old was at the centre of one of Canada's highest profile wrongful conviction cases, and his path to prominence was a bitter one that repeatedly passed through courthouses at all levels of jurisdiction.
He spent 11 years in prison after being convicted - at age 17 - of murder in the 1971 stabbing death of Sandy Seale in Sydney, N.S.
In 1982, his case was referred to the Nova Scotia Supreme Court and a year later he was acquitted on all charges. He had always maintained his innocence.
In 1990, Marshall was finally exonerated in the report of a royal commission into the wrongful murder conviction. The inquiry concluded Marshall was a victim of racism and incompetence, and the Nova Scotia justice system failed him at every turn.
He was eventually compensated with a lifetime pension of $1.5 million.
A second, high-profile legal case involved Marshall's 1996 conviction for illegally catching and selling eels out of season and without a licence.
In 1999, the Supreme Court of Canada upheld a centuries-old treaty between Mi'kmaq natives and the British Crown in acquitting Marshall.
The high court ruling also confirmed that Mi'kmaq and Maliseet in New Brunswick and Nova Scotia have the right to earn a moderate livelihood from hunting, fishing and gathering.
Marshall also found himself in court for other reasons over the years, including a recent case involving charges of assaulting and threatening his wife, Colleen D'Orsay, and her ex-husband who is a lawyer in Sydney.
That matter had been scheduled to return to court later this month.
© Copyright (c) Canwest News Service
http://www.calgaryherald.com/news/Funeral+kmaq+icon+held+Nova+Scotia/1878294/story.html#
Funeral for Mi'kmaq icon held in Nova Scotia.
Canwest News ServiceAugust 9, 2009
SYDNEY, N.S. - Mourners gathered at a Sydney, N.S. church Monday for the funeral of Donald Marshall Jr., - a Nova Scotia Mi'kmaq icon -who died Thursday due to complications arising from a double-lung transplant operation.
The 55 year old was at the centre of one of Canada's highest profile wrongful conviction cases, and his path to prominence was a bitter one that repeatedly passed through courthouses at all levels of jurisdiction.
He spent 11 years in prison after being convicted - at age 17 - of murder in the 1971 stabbing death of Sandy Seale in Sydney, N.S.
In 1982, his case was referred to the Nova Scotia Supreme Court and a year later he was acquitted on all charges. He had always maintained his innocence.
In 1990, Marshall was finally exonerated in the report of a royal commission into the wrongful murder conviction. The inquiry concluded Marshall was a victim of racism and incompetence, and the Nova Scotia justice system failed him at every turn.
He was eventually compensated with a lifetime pension of $1.5 million.
A second, high-profile legal case involved Marshall's 1996 conviction for illegally catching and selling eels out of season and without a licence.
In 1999, the Supreme Court of Canada upheld a centuries-old treaty between Mi'kmaq natives and the British Crown in acquitting Marshall.
The high court ruling also confirmed that Mi'kmaq and Maliseet in New Brunswick and Nova Scotia have the right to earn a moderate livelihood from hunting, fishing and gathering.
Marshall also found himself in court for other reasons over the years, including a recent case involving charges of assaulting and threatening his wife, Colleen D'Orsay, and her ex-husband who is a lawyer in Sydney.
That matter had been scheduled to return to court later this month.
© Copyright (c) Canwest News Service
http://www.calgaryherald.com/news/Funeral+kmaq+icon+held+Nova+Scotia/1878294/story.html#
The state stands accused in Manitoba
"Victims of the state," Winnipeg Free Press
By: Staff Writer, 2/10/2009
IN our adversarial system of law, the nearly limitless powers of the state and its police forces are pitted against defendants represented, usually, by a solitary lawyer with limited resources and powers of investigation. It sounds like an unequal and unjust contest, except for the fact that defendants are protected by the assumption of innocence, the right to remain silent without negative inference and the requirement that the Crown prove its case beyond a reasonable doubt. It is not a perfect system, but it can work if everyone does their job with integrity and respect for the principles of justice and fair play.
In Manitoba, however, there is growing evidence of a systemic pattern of abuse in the recent past among some members of the prosecutorial branch and some police officers who had contempt for the rights of accused persons. Working on the assumption of guilt and the desirability of conviction, they seemed to have taken the view that the legal system was slanted in favour of the bad guy and that extraordinary and unjust measures were required to lock them up.
Their modus operandi resulted in the wrongful conviction of Jim Driskell and the wrongful prosecution of Thomas Sophonow, both for murder. Kyle Unger has been granted bail while the same government department that convicted him for murder considers whether to respect a federal recommendation that he be granted a new trial, which almost certainly will see him acquitted. A fourth case, that of convicted killer Frank Ostrowski, has been slowly working its way through the complacent and self-satisfied halls of justice.
Evidence of police and prosecutorial misconduct, even if untested in court, should spark immediate foot-stomping in the corridors of the state. In the Driskell case, however, the state responded not with alarm that it may have wrongly imprisoned a citizen, but with the stubborn view that it did not matter if his trial was unfair because he was probably guilty anyway. The Crown made this argument, even though it was clear, as a judge later ruled, that a jury might have acquitted him if he had been given a fair trial.
Incidentally, the Crown attorney who was supposed to handle the Driskell bail hearing declared a conflict, so the government hired a lawyer from the private bar to make its case at literally the last moment. Having fixed the trial to ensure a conviction, the Crown was now saying through the farce of independent counsel that its sins did not matter, even though it recognized it was not fit to represent the public interest at the hearing.
The same pattern is repeating itself in the Ostrowski case. A federal investigation concluded recently that there is a "reasonable doubt basis to conclude that a miscarriage of justice likely occurred," but the province has known the issues for years. It knows because it was its justice officials and law-enforcement branch that allegedly manipulated the evidence to assure a conviction. It has known for a long time that a case was coming, but nowhere is there any evidence that it has taken any action other than to prepare for another adversarial process.
Unlike defence counsel, who are professionally obliged to represent the best interests of their clients, the Crown ought to represent the public interest in ways that bolster confidence in the legal system. That means, as previous legal rulings have declared, that information collected by the Crown belongs to the public and must be shared with the defence to ensure the principle of fair and open trials. It should also mean that the state acts quickly to address credible allegations of possible misconduct.
That, however, has not been the pattern. And it's why Canada needs a new system for investigating claims of wrongful conviction on a timely and impartial basis. The only way to overturn convictions today, after all appeals have been heard, is through an application to the federal justice minister. Canada needs a new agency, similar to those in other countries, where miscarriages of justice can be swiftly resolved. It is fundamentally wrong to allow the state and its legal system to manage complaints of wrongful conviction, particularly when the state's officers often end up in the dock.
http://www.winnipegfreepress.com/opinion/editorials/editorial---victims-of-the-state-63232147.html
By: Staff Writer, 2/10/2009
IN our adversarial system of law, the nearly limitless powers of the state and its police forces are pitted against defendants represented, usually, by a solitary lawyer with limited resources and powers of investigation. It sounds like an unequal and unjust contest, except for the fact that defendants are protected by the assumption of innocence, the right to remain silent without negative inference and the requirement that the Crown prove its case beyond a reasonable doubt. It is not a perfect system, but it can work if everyone does their job with integrity and respect for the principles of justice and fair play.
In Manitoba, however, there is growing evidence of a systemic pattern of abuse in the recent past among some members of the prosecutorial branch and some police officers who had contempt for the rights of accused persons. Working on the assumption of guilt and the desirability of conviction, they seemed to have taken the view that the legal system was slanted in favour of the bad guy and that extraordinary and unjust measures were required to lock them up.
Their modus operandi resulted in the wrongful conviction of Jim Driskell and the wrongful prosecution of Thomas Sophonow, both for murder. Kyle Unger has been granted bail while the same government department that convicted him for murder considers whether to respect a federal recommendation that he be granted a new trial, which almost certainly will see him acquitted. A fourth case, that of convicted killer Frank Ostrowski, has been slowly working its way through the complacent and self-satisfied halls of justice.
Evidence of police and prosecutorial misconduct, even if untested in court, should spark immediate foot-stomping in the corridors of the state. In the Driskell case, however, the state responded not with alarm that it may have wrongly imprisoned a citizen, but with the stubborn view that it did not matter if his trial was unfair because he was probably guilty anyway. The Crown made this argument, even though it was clear, as a judge later ruled, that a jury might have acquitted him if he had been given a fair trial.
Incidentally, the Crown attorney who was supposed to handle the Driskell bail hearing declared a conflict, so the government hired a lawyer from the private bar to make its case at literally the last moment. Having fixed the trial to ensure a conviction, the Crown was now saying through the farce of independent counsel that its sins did not matter, even though it recognized it was not fit to represent the public interest at the hearing.
The same pattern is repeating itself in the Ostrowski case. A federal investigation concluded recently that there is a "reasonable doubt basis to conclude that a miscarriage of justice likely occurred," but the province has known the issues for years. It knows because it was its justice officials and law-enforcement branch that allegedly manipulated the evidence to assure a conviction. It has known for a long time that a case was coming, but nowhere is there any evidence that it has taken any action other than to prepare for another adversarial process.
Unlike defence counsel, who are professionally obliged to represent the best interests of their clients, the Crown ought to represent the public interest in ways that bolster confidence in the legal system. That means, as previous legal rulings have declared, that information collected by the Crown belongs to the public and must be shared with the defence to ensure the principle of fair and open trials. It should also mean that the state acts quickly to address credible allegations of possible misconduct.
That, however, has not been the pattern. And it's why Canada needs a new system for investigating claims of wrongful conviction on a timely and impartial basis. The only way to overturn convictions today, after all appeals have been heard, is through an application to the federal justice minister. Canada needs a new agency, similar to those in other countries, where miscarriages of justice can be swiftly resolved. It is fundamentally wrong to allow the state and its legal system to manage complaints of wrongful conviction, particularly when the state's officers often end up in the dock.
http://www.winnipegfreepress.com/opinion/editorials/editorial---victims-of-the-state-63232147.html
Why kids confess to crimes they didn't commit
October 7, 2009
Steve Drizin
Legal Director, Center on Wrongful Convictions at Northwestern's Bluhm Legal Clinic
Why Young People Falsely Confess to Police
"I said I did it but I didn't do it," the 11-year-old convicted murderer told me when I first met him in January of 1995. "Why did you confess to murdering your 83-year-old neighbor," I asked the boy, "if you didn't do it?"
The boy's response chilled me to the bone: "They told me that God would forgive me, that they found my fingerprints on the knife, and that I could go home to my brother's birthday party if I just said I did it." It took me nearly a decade to get the boy's murder conviction vacated, but I am still haunted by his words.
In the nearly fifteen years since that fateful meeting, I have seen dozens of cases in which youthful defendants have falsely confessed to murder and other heinous crimes. Whether it's the West Memphis Three (Arkansas), the Central Park Jogger Five and Marty Tankleff cases (New York City), Lacresha Murray (Texas), or the Ryan Harris case (Illinois), or any of the many other children whose cases have not captured national attention, all have one thing in common: their confessions were unreliable, wrung from children by police officers using sophisticated tactics designed to manipulate guilty adults into confessing but which when used on innocent children often lead them to falsely confess.
Over the years, I've seen police lie to children in all manner of ways, telling them they had failed lie detector tests, telling one child that his dead sister's blood was found in his bedroom and a different boy that his father had awakened from a coma after a shot of adrenaline and told police the boy was his assailant. I've seen detectives suggest to children they can go home if they just confess, promise that they will "go to bat" for them when their cases go to court, and that only they can make sure the children get the "help" they need instead of going to prison.
And it's not just juvenile suspects who have given false statements under police pressure. Earlier this year, 30-year-old Thaddeus Jimenez walked out of an Illinois prison into my arms after serving over 16 years for a murder he did not commit. Arrested at age 13, Jimenez is the rare child who refused to confess when interrogated. But it didn't matter. Chicago police officers pressured a 14-year-old eyewitness to identify Jimenez. The very same tactics used to obtain false confessions from suspects also produce false identifications from witnesses and even crime victims.
I've seen too many parents shed tears over their decision to let police interview their children alone while they sat in the lobby or, even worse, sat next to their children and pressured them along with the police. These parents have had to carry with them the guilt of their complicity as their children have grown up behind bars.
To prevent such tragedies from recurring, courts or legislatures can start by mandating that all interviews of children be electronically recorded, whether the child is a victim, a witness, or a suspect. Recording has been a "best practice" when interviewing child victims for years and needs to be universally applied. Without such recordings, it cannot be known whether the police coerced the child into confessing or whether the statement is the child's account or an agreed-to version of a pre-conceived story told by the child's interrogators.
Parents must be better informed but this alone will not protect children from falsely confessing. In cases or where children face adult punishments and perhaps others, children need to be given access to lawyers.
Merely reading a child his Miranda rights must not be enough to admit the child's confession. Miranda rights need to be rewritten in language that children can understand, explained to them and their parents patiently, and officers must ask the child and parent to explain what each right means in their own words.
Finally, police and experts must design new techniques for interviewing children, techniques that lessen the chance of false confessions without reducing the frequency of true confessions.
My colleagues and I are tired of having our dreams haunted by these cases. On Oct. 8, 2009, we are launching the Center on Wrongful Convictions of Youth ("CWCY"), the first project solely devoted to representing and advocating for wrongly convicted youth. The CWCY is a joint project of the law school's renowned Center on Wrongful Convictions and Children and Family Justice Center.
The launch at Northwestern's law school will feature a panel discussion and statements from several juvenile exonerees, including Marty Tankleff, who spent 19 years in prison before being exonerated of his parents' murders, Barney Brown, who spent 38 years in a Florida prison for a rape before he was declared innocent and released, and Bruce Lisker, who was exonerated only a few weeks ago after spending 26 years in a California prison for the murder of his mother.
Please join us. With your support, the CWCY hopes to increase the accuracy of all youthful convictions -- the innocent and the guilty -- by insisting upon reliable evidence.
To help launch the CWCY, we made a short video about the wrongful convictions of youth. Please watch it, and share it with your friends and family.
For more information about this event, please visit the Center on Wrongful Convictions of Youth's website, or contact Toni Curtis at e-curtis@law.northwestern.edu.
Copyright © 2009 HuffingtonPost.com, Inc.
Steve Drizin
Legal Director, Center on Wrongful Convictions at Northwestern's Bluhm Legal Clinic
Why Young People Falsely Confess to Police
"I said I did it but I didn't do it," the 11-year-old convicted murderer told me when I first met him in January of 1995. "Why did you confess to murdering your 83-year-old neighbor," I asked the boy, "if you didn't do it?"
The boy's response chilled me to the bone: "They told me that God would forgive me, that they found my fingerprints on the knife, and that I could go home to my brother's birthday party if I just said I did it." It took me nearly a decade to get the boy's murder conviction vacated, but I am still haunted by his words.
In the nearly fifteen years since that fateful meeting, I have seen dozens of cases in which youthful defendants have falsely confessed to murder and other heinous crimes. Whether it's the West Memphis Three (Arkansas), the Central Park Jogger Five and Marty Tankleff cases (New York City), Lacresha Murray (Texas), or the Ryan Harris case (Illinois), or any of the many other children whose cases have not captured national attention, all have one thing in common: their confessions were unreliable, wrung from children by police officers using sophisticated tactics designed to manipulate guilty adults into confessing but which when used on innocent children often lead them to falsely confess.
Over the years, I've seen police lie to children in all manner of ways, telling them they had failed lie detector tests, telling one child that his dead sister's blood was found in his bedroom and a different boy that his father had awakened from a coma after a shot of adrenaline and told police the boy was his assailant. I've seen detectives suggest to children they can go home if they just confess, promise that they will "go to bat" for them when their cases go to court, and that only they can make sure the children get the "help" they need instead of going to prison.
And it's not just juvenile suspects who have given false statements under police pressure. Earlier this year, 30-year-old Thaddeus Jimenez walked out of an Illinois prison into my arms after serving over 16 years for a murder he did not commit. Arrested at age 13, Jimenez is the rare child who refused to confess when interrogated. But it didn't matter. Chicago police officers pressured a 14-year-old eyewitness to identify Jimenez. The very same tactics used to obtain false confessions from suspects also produce false identifications from witnesses and even crime victims.
I've seen too many parents shed tears over their decision to let police interview their children alone while they sat in the lobby or, even worse, sat next to their children and pressured them along with the police. These parents have had to carry with them the guilt of their complicity as their children have grown up behind bars.
To prevent such tragedies from recurring, courts or legislatures can start by mandating that all interviews of children be electronically recorded, whether the child is a victim, a witness, or a suspect. Recording has been a "best practice" when interviewing child victims for years and needs to be universally applied. Without such recordings, it cannot be known whether the police coerced the child into confessing or whether the statement is the child's account or an agreed-to version of a pre-conceived story told by the child's interrogators.
Parents must be better informed but this alone will not protect children from falsely confessing. In cases or where children face adult punishments and perhaps others, children need to be given access to lawyers.
Merely reading a child his Miranda rights must not be enough to admit the child's confession. Miranda rights need to be rewritten in language that children can understand, explained to them and their parents patiently, and officers must ask the child and parent to explain what each right means in their own words.
Finally, police and experts must design new techniques for interviewing children, techniques that lessen the chance of false confessions without reducing the frequency of true confessions.
My colleagues and I are tired of having our dreams haunted by these cases. On Oct. 8, 2009, we are launching the Center on Wrongful Convictions of Youth ("CWCY"), the first project solely devoted to representing and advocating for wrongly convicted youth. The CWCY is a joint project of the law school's renowned Center on Wrongful Convictions and Children and Family Justice Center.
The launch at Northwestern's law school will feature a panel discussion and statements from several juvenile exonerees, including Marty Tankleff, who spent 19 years in prison before being exonerated of his parents' murders, Barney Brown, who spent 38 years in a Florida prison for a rape before he was declared innocent and released, and Bruce Lisker, who was exonerated only a few weeks ago after spending 26 years in a California prison for the murder of his mother.
Please join us. With your support, the CWCY hopes to increase the accuracy of all youthful convictions -- the innocent and the guilty -- by insisting upon reliable evidence.
To help launch the CWCY, we made a short video about the wrongful convictions of youth. Please watch it, and share it with your friends and family.
For more information about this event, please visit the Center on Wrongful Convictions of Youth's website, or contact Toni Curtis at e-curtis@law.northwestern.edu.
Copyright © 2009 HuffingtonPost.com, Inc.
Tuesday, October 6, 2009
Will US governments act to develop standards?
Protect the innocent
Updated: October 03, 2009
The horrific problem of wrongful conviction has finally secured a foothold in Congress, where the Senate Judiciary Committee last month focused its attention on what amounts to rock-solid proof that an innocent man was put to death in the United States.
The State of Texas executed Cameron Todd Willingham in 2004 for setting a fire that killed his three children. But a report in the Sept. 7 issue of The New Yorker destroyed the case and, in a later television interview, even the judge admitted that "without question" the scientific evidence was not valid. Yet Willingham is dead.
The hearing, according to The Innocence Project, made clear that bipartisan support exists for "science-based federal forensic standards." That would be a critical development, but since most criminal cases occur in state, not federal, courts, it will be imperative that when and if those standards are developed, they are adopted in states where inadequate forensic standards can land innocent men and women in the penitentiary.
But bad science is only part of the problem of wrongful conviction and in New York, which has one of the worst records for fixing the problems that ensnare innocent people, other issues are more critical. They include eyewitness misidentification and false confessions. Albany knows about these issues, yet it is dragging its feet on fixing them.
The problem of wrongful conviction hit Western New York like a hurricane a few years ago, when first Anthony Capozzi and then Lynn DeJac were found to be innocent of the crimes for which they had been convicted. Since then, The Buffalo News published a five-part editorial page series on the matter and, just this year, the New York State Bar Association issued an in-depth report on this crisis in criminal justice.
Over the summer, the issue seemed to gain traction in the State Legislature, but because of the Senate's leadership fight or legislative indifference or some other reason, nothing has been done. The problems that wrongfully sent Capozzi to prison as the Delaware Park rapist and DeJac as the murderer of her 13-year-old daughter remain in place.
Those problems � eyewitness misidentification, tainted witnesses and faulty science � can be addressed. So can false confessions, the head-spinning phenomenon of innocent people admitting to crimes they didn't commit. The way police departments conduct lineups can make a difference. Video recording of interrogations can make a difference. The admissibility of testimony by informants with charges pending against them can make a difference. But New York cannot bring itself to act.
Other states have taken up this cause, which is, at root, a matter of not only justice but public safety. When the wrong person is convicted of a crime, the real criminal is often left to continue preying on the innocent. That's what happened when Capozzi was convicted. That left Altemio C. Sanchez not just to continue raping women in Western New York, but to start murdering them.
With Washington now starting to pay attention to the problem of wrongful conviction, perhaps the laggard states, including New York, will be moved to act. Even if lawmakers don't care that innocent people are behind bars, they could at least pretend.
Find this article at: http://www.buffalonews.com/149/story/816853.html
Monday, October 5, 2009
Should US prosecutors have absolute immunity?
Balko on Absolute Prosecutorial Immunity
Posted on: September 30, 2009 9:30 AM, by Ed Brayton at
http://scienceblogs.com/dispatches/2009/09/balko_on_absolute_prosecutoria.php?utm_source=sbhomepage&utm_medium=link&utm_content=channellink
Balko has an article at Reason about a case the Supreme Court will hear this fall over what seems like a perfectly obvious question: Can a prosecutor be held personally liable for his actions if he intentionally falsifies testimony and/or evidence in a prosecution that puts an innocent person in prison for 25 years? If you think the answer should obviously be yes, you're a sane, reasonable, decent human being.
If you think the answer should be no because prosecutors should be absolutely immune to any civil suits even if it can be proven that they deliberately violated the law and created fake evidence on which to convict an innocent person, then you must be a prosecutor. Or one of 27 state attorneys general. Or the Obama administration. They all filed briefs taking that heinous position.
Balko explains the facts of the case:
A prosecutor manufactures evidence in order to win a conviction. After the convicted serves 25 years in prison, exculpatory evidence pointing to another perpetrator surfaces. The convicted is released. Should he be able to sue the prosecutor who concocted the false evidence used to convict him?
Believe it or not, it's still an open question. In November, the Supreme Court will hear arguments on Pottawattamie v. McGhee in order to resolve it. The facts of the case aren't in dispute. In 1978, a retired Iowa police captain was killed by a shotgun blast while working as a private security guard. Prosecutors Joseph Hrvol and David Richter then worked with local police to manufacture evidence against the two chief suspects, Terry Harrington and Curtis McGhee, Jr. The two men were convicted of the murder in separate trials, and each was sentenced to life without parole.
The Iowa Supreme Court set aside both convictions in 2003, citing exculpatory evidence pointing to another suspect that was withheld from defense counsel in both trials. Both men were eventually released from prison. Seeking damages for losing 25 years of their lives, they brought a civil rights suit against the police, prosecutors, and county that convicted them. Hrvol and Richter maintain that under the Supreme Court's decision in the 1976 case Imbler v. Pacthman, they have absolute immunity against such a suit.
In Imbler, the Supreme Court determined that a prosecutor who knowingly uses false testimony and withholds exculpatory evidence is immune from damages, even in cases where his misdeeds result in a wrongful conviction. The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring. In another case involving a falsely convicted man attempting to bring a lawsuit, the Court extended absolute immunity to include district attorneys who poorly supervise their subordinates.
Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.
This isn't just qualified immunity they're arguing for. Most public officials have qualified immunity, which means that they can't be sued personally for actions taken in the course of their public duties unless it can be shown that they willfully violated someone's "clearly established statutory or constitutional rights." 90% of the time, qualified immunity is enough to prevent suits against public officials. It's a fairly high standard to meet.
Nor are they arguing that prosecutors should only be held accountable for wrongful convictions if it can be proven that they proactively and intentionally created false evidence or violated the clear legal and ethical requirements of their position. That would distinguish between wrongful convictions that happen as a result of sincere belief or misinterpretation of the evidence and those that happen as a result of willful misconduct.
But here, they are arguing for absolute immunity, for the idea that no prosecutor could ever be sued under any circumstances even if it can be proven conclusively that they intentionally faked evidence and lied to the court, destroying the life of an innocent person. The moral myopia required to sustain such an argument is staggering.
Posted on: September 30, 2009 9:30 AM, by Ed Brayton at
http://scienceblogs.com/dispatches/2009/09/balko_on_absolute_prosecutoria.php?utm_source=sbhomepage&utm_medium=link&utm_content=channellink
Balko has an article at Reason about a case the Supreme Court will hear this fall over what seems like a perfectly obvious question: Can a prosecutor be held personally liable for his actions if he intentionally falsifies testimony and/or evidence in a prosecution that puts an innocent person in prison for 25 years? If you think the answer should obviously be yes, you're a sane, reasonable, decent human being.
If you think the answer should be no because prosecutors should be absolutely immune to any civil suits even if it can be proven that they deliberately violated the law and created fake evidence on which to convict an innocent person, then you must be a prosecutor. Or one of 27 state attorneys general. Or the Obama administration. They all filed briefs taking that heinous position.
Balko explains the facts of the case:
A prosecutor manufactures evidence in order to win a conviction. After the convicted serves 25 years in prison, exculpatory evidence pointing to another perpetrator surfaces. The convicted is released. Should he be able to sue the prosecutor who concocted the false evidence used to convict him?
Believe it or not, it's still an open question. In November, the Supreme Court will hear arguments on Pottawattamie v. McGhee in order to resolve it. The facts of the case aren't in dispute. In 1978, a retired Iowa police captain was killed by a shotgun blast while working as a private security guard. Prosecutors Joseph Hrvol and David Richter then worked with local police to manufacture evidence against the two chief suspects, Terry Harrington and Curtis McGhee, Jr. The two men were convicted of the murder in separate trials, and each was sentenced to life without parole.
The Iowa Supreme Court set aside both convictions in 2003, citing exculpatory evidence pointing to another suspect that was withheld from defense counsel in both trials. Both men were eventually released from prison. Seeking damages for losing 25 years of their lives, they brought a civil rights suit against the police, prosecutors, and county that convicted them. Hrvol and Richter maintain that under the Supreme Court's decision in the 1976 case Imbler v. Pacthman, they have absolute immunity against such a suit.
In Imbler, the Supreme Court determined that a prosecutor who knowingly uses false testimony and withholds exculpatory evidence is immune from damages, even in cases where his misdeeds result in a wrongful conviction. The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring. In another case involving a falsely convicted man attempting to bring a lawsuit, the Court extended absolute immunity to include district attorneys who poorly supervise their subordinates.
Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.
This isn't just qualified immunity they're arguing for. Most public officials have qualified immunity, which means that they can't be sued personally for actions taken in the course of their public duties unless it can be shown that they willfully violated someone's "clearly established statutory or constitutional rights." 90% of the time, qualified immunity is enough to prevent suits against public officials. It's a fairly high standard to meet.
Nor are they arguing that prosecutors should only be held accountable for wrongful convictions if it can be proven that they proactively and intentionally created false evidence or violated the clear legal and ethical requirements of their position. That would distinguish between wrongful convictions that happen as a result of sincere belief or misinterpretation of the evidence and those that happen as a result of willful misconduct.
But here, they are arguing for absolute immunity, for the idea that no prosecutor could ever be sued under any circumstances even if it can be proven conclusively that they intentionally faked evidence and lied to the court, destroying the life of an innocent person. The moral myopia required to sustain such an argument is staggering.
Thursday, October 1, 2009
Crown, police accused of cover-up in Ostrowski case
[Note: The prosecutor mentioned in this case was also a prosecutor in the Milgaard and Driskell cases ... ]
Manitoba police, Crown accused of cover-up
Kirk Makin, Globe and Mail, Oct. 01, 2009
Manitoba police and prosecutors have been accused of covering up their use of tainted testimony to wrongfully convict a Winnipeg drug dealer of a 1986 murder.
After spending 23 years behind bars, Frank Ostrowski, a cocaine dealer convicted in the murder, sought bail Wednesday upon learning that a federal investigation found there is a “reasonable basis” to believe he was framed in the murder of Robert Nieman.
The finding came in response to grave allegations that police and prosecutors concealed the fact that a witness who perjured himself at Mr. Ostrowski's 1987 trial was given a deal in return for his testimony.
“When you're innocent, you don't give up,” Mr. Ostrowski said Wednesday in an exclusive interview with The Globe and Mail.
“I've been fighting ever since they arrested me. You just have to keep kicking and kicking and kicking at that door. Finally, the door falls in.”
Mr. Nieman, 23, was ambushed in his apartment on Sept. 24, 1986, and shot three times in the face. The Crown portrayed Ms. Ostrowski at his trial as a drug lord who arranged Mr. Nieman's murder in the belief that he had told police where to find cocaine and cash in Mr. Ostrowski's home.
In pivotal evidence for the Crown, Mr. Ostrowski's partner in his drug operation – Matthew Lovelace – testified that he called police on the night of the killing to warn them that Mr. Ostrowski had openly discussed eliminating Mr. Nieman.
Painting himself as a good Samaritan, Mr. Lovelace told the jury: “I did not ask for a deal and I was not promised one.”
However, in a scathing, 229-page brief sent to the Department of Justice by the Association in Defence of the Wrongly Convicted, lawyers James Lockyer and Alan Libman said this was a blatant lie countenanced by police and the Crown.
They said that, in direct contradiction to Mr. Lovelace's assertion, outstanding cocaine trafficking charges against him were later withdrawn during a cryptic, 45-second court proceeding.
The AIDWYC brief specifically cited a 1986 Crown memo, in which a prosecutor outlined how Mr. Lovelace's cocaine charges would be withdrawn, if he “comes thru with the goodies.”
The AIDWYC brief alleged: “There can only have been one reason to keep the deal off paper, and that was to maintain deniability at the forthcoming homicide trial that any deal had been made,” it said. “In achieving this end, the integrity of a first-degree murder trial was sabotaged.”
The brief accused several officials of being party to the alleged conspiracy – including a senior Manitoba prosecutor, George Dangerfield.
“A secret arrangement – which met with Mr. Dangerfield's approval and the approval of higher-ups in Manitoba Justice – was negotiated by the Winnipeg Police Department with the Federal Department of Justice prosecutor and Lovelace's counsel, Hymie Weinstein,” the brief said.
“It seems that Lovelace believed he could lie under oath with impunity and without fear of consequences. The whole episode is unworthy of our criminal justice system.”
The brief also said that a recent statement Mr. Dangerfield made to the effect that he knew nothing about the deal was “devoid of credibility.”
The accusations add another layer to a dark cloud surrounding Mr. Dangerfield. Two men he helped convict of murder – James Driskell and Thomas Sophonow – have been exonerated in recent years. A third – Kyle Unger – is well on the way to establishing that he was wrongly convicted.
Three other men were co-accused in the Nieman murder: Robert Dunkley, Jose Correia and James Luzney. Mr. Dunkley and Mr. Correia were eventually convicted, but Mr. Luzney was acquitted after Mr. Dunkley refused to testify against him.
Mr. Ostrowski said Wednesday that Mr. Lovelace – not Mr. Nieman – was the only person who knew where his cash and cocaine stash was located. “He took a deal to get off on his own charges,” he said.
Mr. Ostrowski added that he hopes to see police and prosecutors in his case pay a stiff price: “I'd like to see them follow their own guidelines and their own laws and be held accountable for their actions.”
Manitoba police, Crown accused of cover-up
Kirk Makin, Globe and Mail, Oct. 01, 2009
Manitoba police and prosecutors have been accused of covering up their use of tainted testimony to wrongfully convict a Winnipeg drug dealer of a 1986 murder.
After spending 23 years behind bars, Frank Ostrowski, a cocaine dealer convicted in the murder, sought bail Wednesday upon learning that a federal investigation found there is a “reasonable basis” to believe he was framed in the murder of Robert Nieman.
The finding came in response to grave allegations that police and prosecutors concealed the fact that a witness who perjured himself at Mr. Ostrowski's 1987 trial was given a deal in return for his testimony.
“When you're innocent, you don't give up,” Mr. Ostrowski said Wednesday in an exclusive interview with The Globe and Mail.
“I've been fighting ever since they arrested me. You just have to keep kicking and kicking and kicking at that door. Finally, the door falls in.”
Mr. Nieman, 23, was ambushed in his apartment on Sept. 24, 1986, and shot three times in the face. The Crown portrayed Ms. Ostrowski at his trial as a drug lord who arranged Mr. Nieman's murder in the belief that he had told police where to find cocaine and cash in Mr. Ostrowski's home.
In pivotal evidence for the Crown, Mr. Ostrowski's partner in his drug operation – Matthew Lovelace – testified that he called police on the night of the killing to warn them that Mr. Ostrowski had openly discussed eliminating Mr. Nieman.
Painting himself as a good Samaritan, Mr. Lovelace told the jury: “I did not ask for a deal and I was not promised one.”
However, in a scathing, 229-page brief sent to the Department of Justice by the Association in Defence of the Wrongly Convicted, lawyers James Lockyer and Alan Libman said this was a blatant lie countenanced by police and the Crown.
They said that, in direct contradiction to Mr. Lovelace's assertion, outstanding cocaine trafficking charges against him were later withdrawn during a cryptic, 45-second court proceeding.
The AIDWYC brief specifically cited a 1986 Crown memo, in which a prosecutor outlined how Mr. Lovelace's cocaine charges would be withdrawn, if he “comes thru with the goodies.”
The AIDWYC brief alleged: “There can only have been one reason to keep the deal off paper, and that was to maintain deniability at the forthcoming homicide trial that any deal had been made,” it said. “In achieving this end, the integrity of a first-degree murder trial was sabotaged.”
The brief accused several officials of being party to the alleged conspiracy – including a senior Manitoba prosecutor, George Dangerfield.
“A secret arrangement – which met with Mr. Dangerfield's approval and the approval of higher-ups in Manitoba Justice – was negotiated by the Winnipeg Police Department with the Federal Department of Justice prosecutor and Lovelace's counsel, Hymie Weinstein,” the brief said.
“It seems that Lovelace believed he could lie under oath with impunity and without fear of consequences. The whole episode is unworthy of our criminal justice system.”
The brief also said that a recent statement Mr. Dangerfield made to the effect that he knew nothing about the deal was “devoid of credibility.”
The accusations add another layer to a dark cloud surrounding Mr. Dangerfield. Two men he helped convict of murder – James Driskell and Thomas Sophonow – have been exonerated in recent years. A third – Kyle Unger – is well on the way to establishing that he was wrongly convicted.
Three other men were co-accused in the Nieman murder: Robert Dunkley, Jose Correia and James Luzney. Mr. Dunkley and Mr. Correia were eventually convicted, but Mr. Luzney was acquitted after Mr. Dunkley refused to testify against him.
Mr. Ostrowski said Wednesday that Mr. Lovelace – not Mr. Nieman – was the only person who knew where his cash and cocaine stash was located. “He took a deal to get off on his own charges,” he said.
Mr. Ostrowski added that he hopes to see police and prosecutors in his case pay a stiff price: “I'd like to see them follow their own guidelines and their own laws and be held accountable for their actions.”
Wednesday, September 30, 2009
No one apologized for WC
Life for Dail hasn't been easy
Reporter: Mike Charbonneau
Posted: Sep. 29 7:03 p.m. on http://www.wral.com/news/local/story/6103463/
Raleigh, N.C. — Wrongfully convicted of raping a 12-year-old girl in Goldsboro, Dwayne Dail served 18 years in prison before DNA evidence cleared him of the crime in 2007.
Now, he counts every day as a blessing.
WATCH VIDEOWeb only: Dwayne Dail on life after prison
"I've been free for two years, one month and one day," he said Tuesday at a rally in Raleigh calling for the release of a man whom supporters says is also serving time for a crime he didn't commit.
After his release, Dail moved to Florida to start a new life and to try to get to know his 18-year-old son. He planned to go back to school and move forward with his lfie.
But it hasn't been as easy as he thought.
"The hardest part is to just put one foot in front of the other and move in the free world as a free man," he said. "It's difficult."
Two years, one month and one day later, he says he's still trying to get his life back.
"It's the mental independence that I've just recently gotten (back), because I've needed help for so long," he said.
Despite his path, he says he still has faith in justice. He now travels the country giving lectures and helping to fight for others who have been wrongly convicted.
"When someone is innocent, we can move to get them out quickly rather than compounding the injustice that's already been done."
After two years one month and one day, Dail says he's ready to go back to school now to study criminal justice. He wants to work in a district attorney's office.
"I believe I would be a great investigator of the facts and make sure the facts are the facts and not just what is being presented as the facts," he said. "That's what I would love to do."
He says sees everyday of freedom as a day to make a difference.
The state of North Carolina has since paid Dail more than $350,000 as compensation for his wrongful incarceration.
That brought a change in state law in 2008, when the General Assembly increased compensation from $20,000 a year to $50,000, with a cap at $750,000. There also provisions to pay for job skills training and waiving tuition.
Another man, William Jackson Neal Jr. has since been indicted in the case. He is already serving a maximum prison sentence of 93 months in Johnston County for a conviction on a habitual felon charge.
Dail says his one regret about his case is that while the state compensated him for the time he served in prison, no one ever apologized for what happened.
Reporter: Mike Charbonneau
Posted: Sep. 29 7:03 p.m. on http://www.wral.com/news/local/story/6103463/
Raleigh, N.C. — Wrongfully convicted of raping a 12-year-old girl in Goldsboro, Dwayne Dail served 18 years in prison before DNA evidence cleared him of the crime in 2007.
Now, he counts every day as a blessing.
WATCH VIDEOWeb only: Dwayne Dail on life after prison
"I've been free for two years, one month and one day," he said Tuesday at a rally in Raleigh calling for the release of a man whom supporters says is also serving time for a crime he didn't commit.
After his release, Dail moved to Florida to start a new life and to try to get to know his 18-year-old son. He planned to go back to school and move forward with his lfie.
But it hasn't been as easy as he thought.
"The hardest part is to just put one foot in front of the other and move in the free world as a free man," he said. "It's difficult."
Two years, one month and one day later, he says he's still trying to get his life back.
"It's the mental independence that I've just recently gotten (back), because I've needed help for so long," he said.
Despite his path, he says he still has faith in justice. He now travels the country giving lectures and helping to fight for others who have been wrongly convicted.
"When someone is innocent, we can move to get them out quickly rather than compounding the injustice that's already been done."
After two years one month and one day, Dail says he's ready to go back to school now to study criminal justice. He wants to work in a district attorney's office.
"I believe I would be a great investigator of the facts and make sure the facts are the facts and not just what is being presented as the facts," he said. "That's what I would love to do."
He says sees everyday of freedom as a day to make a difference.
The state of North Carolina has since paid Dail more than $350,000 as compensation for his wrongful incarceration.
That brought a change in state law in 2008, when the General Assembly increased compensation from $20,000 a year to $50,000, with a cap at $750,000. There also provisions to pay for job skills training and waiving tuition.
Another man, William Jackson Neal Jr. has since been indicted in the case. He is already serving a maximum prison sentence of 93 months in Johnston County for a conviction on a habitual felon charge.
Dail says his one regret about his case is that while the state compensated him for the time he served in prison, no one ever apologized for what happened.
Tuesday, September 29, 2009
"Victims of Justice" speak
Originally published by CTV News. 2.4.2006
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060203/wfive_VictimsofJustice_060204/20060204?hub=WFive
by Katherine Janson, W-Five
A Select Club
David Milgaard - Wrongly convicted of murder. Served 23 years.
Donald Marshall Jr. - Wrongly convicted of murder. Served 11 years.
Guy Paul Morin - Wrongly convicted of murder. Served 1½ years.
It's a select club, totalling about 30 members so far -- and the membership is growing. But theirs is a club that not one of these men ever wanted to join. Because all of them served sentences for crimes they didn't commit.
Today, they are all free -- exonerated of the heinous crimes that tarred their names -- but they may never be free of the stigma. Upon their release from incarceration, they return to a world that is forever changed and they themselves may never be the same.
"When I got of prison I was a black and white person," says Thomas Sophonow, who served four years in prison. You either trust or you don't trust, he said, but there's nothing in between.
The crime Sophonow was wrongly convicted of was heinous. On December 23, 1981, 16-year-old waitress Barbara Stoppel was found strangled and left for dead in a washroom at a doughnut shop in Winnipeg.
Three months later, Thomas Sophonow was charged with her murder. Even though he had an alibi and there was no physical evidence linking him to the attack, he was eventually convicted and sentenced to life in prison. All the while, Sophonow maintained his innocence.
After four years behind bars, Sophonow was set free when the Manitoba court of appeal unanimously overturned his conviction. But his nightmare was far from over. Everywhere Sophonow went, he was treated as a man who got away with murder.
"That was the core of my anger," he said.
So how did he survive this scrutiny and disdain? Where did he put all the frustration of living with a truth that no one else would accept?
"I just kept it bottled up inside. I would occasionally just blow up and just get mad, just totally freak out."
It was not until the summer of 2000 that the Manitoba Government finally called for a public inquiry and issued Sophonow an apology. But despite final and full exoneration--with DNA proof that he didn't attack and kill Barbara Stoppel -- Sophonow still suffers under the weight of his ordeal.
These days, he rebuilds his new life in New Westminster, BC, as he renovates the heritage home he lives in with his wife and three kids. But Sophoneow still lives under the sinister shadow cast by his conviction as a murderer.
"Until I can overcome my mental block and talk about issues, it'll always be there. But I haven't -- I'm not there yet," he said.
Putting a label on the pain
During the public inquiry into his wrongful conviction, Sophonow sought treatment from Dr. Adrian Grounds, a forensic psychiatrist at the University of Cambridge who is internationally recognized for his work on the damage done to the wrongly convicted.
"They may get panic attacks, nightmares, vivid memories of particular experiences, adverse experiences that they've had in prison," Dr. Grounds told W-FIVE in an interview.
Prison had a profound effect on Sophonow -- something his wife, Rebecca, noticed almost immediately when they met. "He used to pace, that was something that always stuck in my mind. He would put his head down and just walk back and forth across the room. A certain amount of steps it seemed, like he did when he was in jail."
W-FIVE's Victor Malarek asked Sophonow what it was like to spend four years in prison for something he didn't do.
"I don't talk about prison," said Sophonow, his eyes welling with tears. "I just don't talk about it."
Even after all these years, it's difficult to go back there.
"Take one day at a time," he said. "Take one hour at a time."
A Crime that Never Was
Across the country in St. John's, Newfoundland, Ron Dalton counted thousands of hours for a crime that never was. In 1989, the university-educated bank manager was convicted and sentenced to life in prison for strangling his wife, Brenda.
"I can always hear my mother there someplace in the background, screeching as the jury comes back in and says guilty," he said. In an instant, Dalton lost everything he held dear.
When he went to prison, his sister Linda Gallant and her husband Sonny took in Dalton's three children and raised them alongside their own three kids.
"The worst part about being in prison was being away from (your children) when you're used to spending every day of your life with them," he said.
It would take eight and a half years in prison before Dalton was released on bail, his original conviction questioned, but facing a new trial on the same charges. Coming home to his family was what he always wanted, but that didn't make it easy.
"It was difficult, very difficult. Coming home my three children were still with my sister and her husband. I was out of prison, but I wasn't free to pick up the pieces," he explained.
Dalton had to split his attention between his growing children and his new trial, which he couldn't afford to lose. "I wouldn't move them back in with me and then have to give them up again a year later if I was convicted a second time."
Forensic evidence eventually proved his wife choked on cereal. Dalton was acquitted in the 2000 trail, but he is still struggling to regain the stolen years.
Linda Gallant sees her brother's loss every time she looks into his face.
"When I look at him and I remember his children it was just, just a sadness there (in his face), that he missed a lot. And it's an ongoing thing because you cannot ever make that back up," she said.
Learning to Reconnect
Of all the losses a wrongly convicted person has to cope with, losing the ability to trust people is a pervasive and lasting effect, says Dr. Grounds.
"Some people remain in a state of permanent mistrust. That sense of confidence in the stability and predictability of the world, the fact that you can rely on people has gone forever," he said.
Ron Dalton explains how prison has affected him: "It's made me much less trusting and it's harder to form close relationships. It's harder to trust people, (knowing) that you've been burned by so many people who are there."
And the scars take a very long time to fade.
"That mark of Cain is always there. You know, you're branded as a murderer," he said.
Lasting Effects
In 1995, Randy Druken was convicted of the brutal stabbing death of his 26-year-old girlfriend, Brenda Young. He was released on bail in 1999 and eventually exonerated by DNA evidence, but life has never returned to normal.
"What I want most I'll never be able to get right for things to be the way they were. But I'll settle for my life you know," he said.
Druken served his sentence in the Atlantic Institution, a maximum-security prison located in Renous, New Brunswick.
"There was times that... I even wanted to kill myself, you know. Again I had to think of reasons why not to," he said.
"I had to, you know, try to find strength in other peoples' ordeals that they were going through when they were trying to survive."
In order to cope in prison, he used to go to the library and get books on the Holocaust to read about those who had done time in concentration camps.
"Not that I went through anything what they went through, but the stories that they wrote helped me to get through what I was going through," he said.
With few places to turn in prison, Randy also turned to drugs. Although they dulled his pain, Randy eventually emerged from prison with a powerful drug addiction. And he was not equipped to deal with how much had changed.
"I got addicted to CONTIN MS's, which is a painkiller for cancer patients. When I come out I was wired into morphine and I remember there for a while I wouldn't even do Oxycontins on the street. It didn't do nothing for me -- that's how high the drug was that I was doing in jail."
Bill Collins is Randy Druken's lawyer of 20 years and probably one of his only real friends. In Collins' opinion the drugs offered Randy a crutch.
"Randy was ashamed of the fact that people thought that he was the killer. He was insecure in any social setting whatsoever. I think it was just a way to escape the world, and possibly, life," says Collins.
Unable to escape the stronghold of his wrongful conviction and the lasting psychological damage, Randy has cycled in and out of jail four more times since his release.
"Each time I come back it was because of drugs. There was times I asked the courts to put me in jail to get off this problem to get away from this drug problem," said Druken.
Getting what they deserve
The system of support for the wrongly convicted is just not good enough for James Lockyer, a prominent lawyer and co-founder of the Association in Defence of the Wrongly Convicted. He says the government has a responsibility to these men.
"They obviously need social help from professionals and those professionals, it seems to me, should be provided by and paid for by the state. As well, the other way the state can and should help is by providing compensation."
Of about 30 wrongful convictions in Canada, so far only about a dozen men have received a cash settlement for their time in prison. But getting compensation has always been, and continues to be, an uphill struggle. And that's the case for Ron Dalton.
"Compensation is the way governments apologize. They apologize with their chequebooks. An apology, a formal acknowledgement of innocence would be nice, but government's rarely do that as well," he said.
Randy Druken desperately wants to straighten out his life but he knows he's got one very big mountain to climb.
"I got to do it this time or it's going to kill me."
In March 2003, the Government of Newfoundland and Labrador announced a public inquiry into alleged miscarriages of justice in the cases of three men, including Randy Druken and Ronald Dalton. Druken and Dalton are still awaiting the results of the Lamer inquiry, which should be released by June 1, 2006.
And while it's been 20 years since Thomas Sophonow walked out of prison a free man, his past continues to haunt him.
In 2003, Sophonow was awarded $2.6 million in compensation--17 years after his release. But he insists that the time he spent in jail for a crime he didn't commit can never be repaid.
"No. No. Actually no. To tell you the truth, no compensation would pay for all the years," says Sophonow.
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060203/wfive_VictimsofJustice_060204/20060204?hub=WFive
by Katherine Janson, W-Five
A Select Club
David Milgaard - Wrongly convicted of murder. Served 23 years.
Donald Marshall Jr. - Wrongly convicted of murder. Served 11 years.
Guy Paul Morin - Wrongly convicted of murder. Served 1½ years.
It's a select club, totalling about 30 members so far -- and the membership is growing. But theirs is a club that not one of these men ever wanted to join. Because all of them served sentences for crimes they didn't commit.
Today, they are all free -- exonerated of the heinous crimes that tarred their names -- but they may never be free of the stigma. Upon their release from incarceration, they return to a world that is forever changed and they themselves may never be the same.
"When I got of prison I was a black and white person," says Thomas Sophonow, who served four years in prison. You either trust or you don't trust, he said, but there's nothing in between.
The crime Sophonow was wrongly convicted of was heinous. On December 23, 1981, 16-year-old waitress Barbara Stoppel was found strangled and left for dead in a washroom at a doughnut shop in Winnipeg.
Three months later, Thomas Sophonow was charged with her murder. Even though he had an alibi and there was no physical evidence linking him to the attack, he was eventually convicted and sentenced to life in prison. All the while, Sophonow maintained his innocence.
After four years behind bars, Sophonow was set free when the Manitoba court of appeal unanimously overturned his conviction. But his nightmare was far from over. Everywhere Sophonow went, he was treated as a man who got away with murder.
"That was the core of my anger," he said.
So how did he survive this scrutiny and disdain? Where did he put all the frustration of living with a truth that no one else would accept?
"I just kept it bottled up inside. I would occasionally just blow up and just get mad, just totally freak out."
It was not until the summer of 2000 that the Manitoba Government finally called for a public inquiry and issued Sophonow an apology. But despite final and full exoneration--with DNA proof that he didn't attack and kill Barbara Stoppel -- Sophonow still suffers under the weight of his ordeal.
These days, he rebuilds his new life in New Westminster, BC, as he renovates the heritage home he lives in with his wife and three kids. But Sophoneow still lives under the sinister shadow cast by his conviction as a murderer.
"Until I can overcome my mental block and talk about issues, it'll always be there. But I haven't -- I'm not there yet," he said.
Putting a label on the pain
During the public inquiry into his wrongful conviction, Sophonow sought treatment from Dr. Adrian Grounds, a forensic psychiatrist at the University of Cambridge who is internationally recognized for his work on the damage done to the wrongly convicted.
"They may get panic attacks, nightmares, vivid memories of particular experiences, adverse experiences that they've had in prison," Dr. Grounds told W-FIVE in an interview.
Prison had a profound effect on Sophonow -- something his wife, Rebecca, noticed almost immediately when they met. "He used to pace, that was something that always stuck in my mind. He would put his head down and just walk back and forth across the room. A certain amount of steps it seemed, like he did when he was in jail."
W-FIVE's Victor Malarek asked Sophonow what it was like to spend four years in prison for something he didn't do.
"I don't talk about prison," said Sophonow, his eyes welling with tears. "I just don't talk about it."
Even after all these years, it's difficult to go back there.
"Take one day at a time," he said. "Take one hour at a time."
A Crime that Never Was
Across the country in St. John's, Newfoundland, Ron Dalton counted thousands of hours for a crime that never was. In 1989, the university-educated bank manager was convicted and sentenced to life in prison for strangling his wife, Brenda.
"I can always hear my mother there someplace in the background, screeching as the jury comes back in and says guilty," he said. In an instant, Dalton lost everything he held dear.
When he went to prison, his sister Linda Gallant and her husband Sonny took in Dalton's three children and raised them alongside their own three kids.
"The worst part about being in prison was being away from (your children) when you're used to spending every day of your life with them," he said.
It would take eight and a half years in prison before Dalton was released on bail, his original conviction questioned, but facing a new trial on the same charges. Coming home to his family was what he always wanted, but that didn't make it easy.
"It was difficult, very difficult. Coming home my three children were still with my sister and her husband. I was out of prison, but I wasn't free to pick up the pieces," he explained.
Dalton had to split his attention between his growing children and his new trial, which he couldn't afford to lose. "I wouldn't move them back in with me and then have to give them up again a year later if I was convicted a second time."
Forensic evidence eventually proved his wife choked on cereal. Dalton was acquitted in the 2000 trail, but he is still struggling to regain the stolen years.
Linda Gallant sees her brother's loss every time she looks into his face.
"When I look at him and I remember his children it was just, just a sadness there (in his face), that he missed a lot. And it's an ongoing thing because you cannot ever make that back up," she said.
Learning to Reconnect
Of all the losses a wrongly convicted person has to cope with, losing the ability to trust people is a pervasive and lasting effect, says Dr. Grounds.
"Some people remain in a state of permanent mistrust. That sense of confidence in the stability and predictability of the world, the fact that you can rely on people has gone forever," he said.
Ron Dalton explains how prison has affected him: "It's made me much less trusting and it's harder to form close relationships. It's harder to trust people, (knowing) that you've been burned by so many people who are there."
And the scars take a very long time to fade.
"That mark of Cain is always there. You know, you're branded as a murderer," he said.
Lasting Effects
In 1995, Randy Druken was convicted of the brutal stabbing death of his 26-year-old girlfriend, Brenda Young. He was released on bail in 1999 and eventually exonerated by DNA evidence, but life has never returned to normal.
"What I want most I'll never be able to get right for things to be the way they were. But I'll settle for my life you know," he said.
Druken served his sentence in the Atlantic Institution, a maximum-security prison located in Renous, New Brunswick.
"There was times that... I even wanted to kill myself, you know. Again I had to think of reasons why not to," he said.
"I had to, you know, try to find strength in other peoples' ordeals that they were going through when they were trying to survive."
In order to cope in prison, he used to go to the library and get books on the Holocaust to read about those who had done time in concentration camps.
"Not that I went through anything what they went through, but the stories that they wrote helped me to get through what I was going through," he said.
With few places to turn in prison, Randy also turned to drugs. Although they dulled his pain, Randy eventually emerged from prison with a powerful drug addiction. And he was not equipped to deal with how much had changed.
"I got addicted to CONTIN MS's, which is a painkiller for cancer patients. When I come out I was wired into morphine and I remember there for a while I wouldn't even do Oxycontins on the street. It didn't do nothing for me -- that's how high the drug was that I was doing in jail."
Bill Collins is Randy Druken's lawyer of 20 years and probably one of his only real friends. In Collins' opinion the drugs offered Randy a crutch.
"Randy was ashamed of the fact that people thought that he was the killer. He was insecure in any social setting whatsoever. I think it was just a way to escape the world, and possibly, life," says Collins.
Unable to escape the stronghold of his wrongful conviction and the lasting psychological damage, Randy has cycled in and out of jail four more times since his release.
"Each time I come back it was because of drugs. There was times I asked the courts to put me in jail to get off this problem to get away from this drug problem," said Druken.
Getting what they deserve
The system of support for the wrongly convicted is just not good enough for James Lockyer, a prominent lawyer and co-founder of the Association in Defence of the Wrongly Convicted. He says the government has a responsibility to these men.
"They obviously need social help from professionals and those professionals, it seems to me, should be provided by and paid for by the state. As well, the other way the state can and should help is by providing compensation."
Of about 30 wrongful convictions in Canada, so far only about a dozen men have received a cash settlement for their time in prison. But getting compensation has always been, and continues to be, an uphill struggle. And that's the case for Ron Dalton.
"Compensation is the way governments apologize. They apologize with their chequebooks. An apology, a formal acknowledgement of innocence would be nice, but government's rarely do that as well," he said.
Randy Druken desperately wants to straighten out his life but he knows he's got one very big mountain to climb.
"I got to do it this time or it's going to kill me."
In March 2003, the Government of Newfoundland and Labrador announced a public inquiry into alleged miscarriages of justice in the cases of three men, including Randy Druken and Ronald Dalton. Druken and Dalton are still awaiting the results of the Lamer inquiry, which should be released by June 1, 2006.
And while it's been 20 years since Thomas Sophonow walked out of prison a free man, his past continues to haunt him.
In 2003, Sophonow was awarded $2.6 million in compensation--17 years after his release. But he insists that the time he spent in jail for a crime he didn't commit can never be repaid.
"No. No. Actually no. To tell you the truth, no compensation would pay for all the years," says Sophonow.
Need to study prosecutor's role in WC cases
Panelists say prosecutor job is intense, powerful. "The author of a 2003 study on prosecutorial misconduct and founder of an Innocence Project group on the MU campus, said local prosecutors have tremendous power. He said the news media needed to do a better job of covering what prosecutors do, beyond merely covering what happens in the courtroom. Prosecutors have considerable discretion over whether to pursue or dismiss cases." http://www.columbiatribune.com/news/2009/sep/18/panelists-say-prosecutor-job-is-intense-powerful/
Monday, September 28, 2009
Arar as wrongful conviction case?
I get my information about crime from the media just like everybody else. Like most people I know who Maher Arar is because he has been awarded $10 million, legal costs and an apology for Canada's role in getting him a reservation for a year-long stay in a Syrian jail.
But I have to confess I wasn't really paying attention in 2002 when articles first started appearing in the news. While there are still newspapers who report that Maher "says" he was tortured during the year he was jailed in Damascus as if it is a suspect claim, in general coverage has changed substantially over five years.
What happened to Arar prompted a public inquiry and the final report placed the blame for Arar's deportation on the RCMP for giving inaccurate information to U.S. authorities. The former RCMP commissioner, Giuliano Zaccardelli, resigned over the case last December.
In this case it doesn't matter that there might have been good reasons for a bad mistake. It doesn't matter that in the aftermath of 9/11 security was tightened up. An innocent man was convicted without a trial. This is unconscionable.
So I am intrigued by statements such as 'anonymous leaks in the Canadian security establishment that have never been traced fuelled suspicion.' To do catch-up on the story I went back to find news articles which leaked information damaging to Arar's reputation from unattributed sources. I found out more than I knew but less than I hoped.
For example, I found out from ctv.ca that the RCMP has shared information about people who have done nothing wrong with U.S. police and security agencies if they have associated with persons suspected as security threats.
Further, that 'extraordinary rendition' is the technical term for sending persons suspected as terrorists for questioning in foreign countries which use torture to extract 'confessions.'
I also found out from Talk Left, an online magazine of crime-related injustice news, that in 2004 when Ottawa Citizen reporter Juliet O'Neill wrote an article citing "a security source" giving details of what Arar told Syrian military intelligence officials during his incarceration that the RCMP armed with a search warrant searched her home trying to find the source of the leaked information.
I learned from www.injusticebusters.com that in 2004 an Ontario Superior Court Judge ruled that court orders sealing the reasons for security raids against O'Neill violated constitutional guarantees of a free press, freedom of expression and the public's right to an open court system.
The RCMP request to keep the reasons secret for the raid on her home came under the Security of Information Act, a law passed following the 9/11 attacks as part of the omnibus Anti-Terrorism Act.
The Security of Information Act replaced the Official Secrets Act adopted on the eve of the Second World War. The National Post writes that there have been only six criminal investigations since the early 1960s dealing with spying or leaked information. One of the last cases was in 1979 against the Toronto Sun for publishing a 1976 RCMP report related to Russian spies in Canada.
News accounts from 2003 say the RCMP was waiting at Dorval on Sept. 27, 2002, for Arar to return from Tunisia through JFK Airport. However, CBS's 60 Minutes reports Canadian intelligence approved of the U.S. decision to deport Mr. Arar to Syria. The U.S. had offered to deport Arar to Canada but sent him to Syria instead after the RCMP said it did not have enough evidence to detain or charge him if he was sent home.
So he was innocent, evidence which could have proved it was not released, and he was sent to jail without a trial. This doesn't sound like justice to me. Not at all.
The O'Connor Inquiry into the wrongful conviction of Maher Arar released its report on Sept. 18, 2006, clearing Maher of all terrorism allegations, and found that the actions of Canadian officials lead to his ordeal.
Maher has extensive resources devoted to this case at www.maherarar.ca and the report can be found at www.ararcommission.ca.
This article originally appeared in the Daily Gleaner, Feb 1, 2007 as "Canada's latest wrongful conviction case?"
But I have to confess I wasn't really paying attention in 2002 when articles first started appearing in the news. While there are still newspapers who report that Maher "says" he was tortured during the year he was jailed in Damascus as if it is a suspect claim, in general coverage has changed substantially over five years.
What happened to Arar prompted a public inquiry and the final report placed the blame for Arar's deportation on the RCMP for giving inaccurate information to U.S. authorities. The former RCMP commissioner, Giuliano Zaccardelli, resigned over the case last December.
In this case it doesn't matter that there might have been good reasons for a bad mistake. It doesn't matter that in the aftermath of 9/11 security was tightened up. An innocent man was convicted without a trial. This is unconscionable.
So I am intrigued by statements such as 'anonymous leaks in the Canadian security establishment that have never been traced fuelled suspicion.' To do catch-up on the story I went back to find news articles which leaked information damaging to Arar's reputation from unattributed sources. I found out more than I knew but less than I hoped.
For example, I found out from ctv.ca that the RCMP has shared information about people who have done nothing wrong with U.S. police and security agencies if they have associated with persons suspected as security threats.
Further, that 'extraordinary rendition' is the technical term for sending persons suspected as terrorists for questioning in foreign countries which use torture to extract 'confessions.'
I also found out from Talk Left, an online magazine of crime-related injustice news, that in 2004 when Ottawa Citizen reporter Juliet O'Neill wrote an article citing "a security source" giving details of what Arar told Syrian military intelligence officials during his incarceration that the RCMP armed with a search warrant searched her home trying to find the source of the leaked information.
I learned from www.injusticebusters.com that in 2004 an Ontario Superior Court Judge ruled that court orders sealing the reasons for security raids against O'Neill violated constitutional guarantees of a free press, freedom of expression and the public's right to an open court system.
The RCMP request to keep the reasons secret for the raid on her home came under the Security of Information Act, a law passed following the 9/11 attacks as part of the omnibus Anti-Terrorism Act.
The Security of Information Act replaced the Official Secrets Act adopted on the eve of the Second World War. The National Post writes that there have been only six criminal investigations since the early 1960s dealing with spying or leaked information. One of the last cases was in 1979 against the Toronto Sun for publishing a 1976 RCMP report related to Russian spies in Canada.
News accounts from 2003 say the RCMP was waiting at Dorval on Sept. 27, 2002, for Arar to return from Tunisia through JFK Airport. However, CBS's 60 Minutes reports Canadian intelligence approved of the U.S. decision to deport Mr. Arar to Syria. The U.S. had offered to deport Arar to Canada but sent him to Syria instead after the RCMP said it did not have enough evidence to detain or charge him if he was sent home.
So he was innocent, evidence which could have proved it was not released, and he was sent to jail without a trial. This doesn't sound like justice to me. Not at all.
The O'Connor Inquiry into the wrongful conviction of Maher Arar released its report on Sept. 18, 2006, clearing Maher of all terrorism allegations, and found that the actions of Canadian officials lead to his ordeal.
Maher has extensive resources devoted to this case at www.maherarar.ca and the report can be found at www.ararcommission.ca.
This article originally appeared in the Daily Gleaner, Feb 1, 2007 as "Canada's latest wrongful conviction case?"
Marshall was a fighter to the end
Donald Marshall died last week. I first heard of him in the 1980s.
The royal commission into his wrongful incarceration had just concluded. It was the first public investigation into a wrongful conviction in Canada. It would not be the last.
I certainly hadn't heard about Marshall's conviction and incarceration in the early 1970s. His conviction would have been minor news outside the province, but by 1989 it was major news. And it would go on to have echoes far beyond the lives of those involved at the time.
To me the story of Donald Marshall was incredible because it said the legal system is not always just and that sometimes justice is a long time coming, if it comes at all.Marshall was a young native man who was arrested after his friend Sandy Seale was fatally stabbed in Wentworth Park in Sydney on May 29, 1971. The two were 17, and the stabbing occurred after a teenage dance at a church hall.
The boys had met after the dance at a local park. They were standing on a bridge talking when a white-haired man approached them and asked for a cigarette and a match. When Sandy said he had none, the man said he didn't like blacks or Indians, and stabbed him in the stomach and slashed Donald on the arm.
This story would become lost, and not resurface for a dozen years. The rest is history, as they say, but history has a way of not going away.
Local police Sergeant MacIntyre investigated, but the crime scene was not secured, and statements were not taken at the scene or at the hospital.
Witness accounts which corroborated Donald's version of events were discounted in favour of accounts which pointed to his guilt.
Juvenile witnesses were interrogated in the absence of their parents and threatened with charges if they did not corroborate. One witness who was coerced was a 14-year-old girl.
On June 5 Marshall was charged with murder. Police would not elaborate on the break in the case that allowed them to lay charges, but at trial a teenager said he saw Donald stab Sandy in an argument.
We now know that witness was coerced to testify to events he did not see.Crown prosecutor MacNeil pursued a case based on shaky witness testimony, and the defense was, by all accounts, weak. When one of the witnesses attempted to alter his testimony, the prosecutor made it apparent he could be charged with perjury. Judge Drubinsky made it clear the defense had to stick to the agreed-upon statement of facts about what happened that night in the park.
We now know that statement was false, but a case built on lies could never arrive at the truth. It took four hours for the jury to convict.
The case was appealed, but weakly, because attorney Rosenblum didn't really expect the outcome to change. However, he was operating without full disclosure of the facts.
Evidence arose which affirmed Marshall's version of events and pointed to Roy Ebsary as the mystery assailant. Furthermore, evidence collected by RCMP Staff Sergeant Wheaton showed that eyewitness testimony had been perjured, and that Ebsary was probably responsible.
When the case did go to appeal in 1982 the deputy attorney general tried to prevent the acquittal. And a prosecutor on the original case sat on the appeal, raising issues of conflict of interest.
However, in the end, the appeal court judges concluded that Marshall was responsible for whatever injustice had happened. And the Supreme Court ultimately decided that those judges could not be questioned about their decision.
In a stinging indictment of that decision, the royal commission said there had been a grievous miscarriage of justice, which meant all those people involved in the investigation and prosecution were part of the injustice. Yet none of them went to jail or suffered in any way - not the police, the lawyers or the judges.
Marshall was finally exonerated during the inquiry and he went on to win another fight, in his appeal against being charged for fishing eels in 1993. The 1999 Supreme Court decision recognized native sovereignty based in historic treaties.The wrongful conviction case opened up a new understanding of problems in the criminal justice system. And the fishing case opened up new opportunities for natives in Canada.
Would he have picked these fights if he had a choice? Probably not, but he didn't back away from them either.
He might not have chosen it, but he had quite a life.
This article originally appeared in the Daily Gleaner, Aug 11, 2009
The royal commission into his wrongful incarceration had just concluded. It was the first public investigation into a wrongful conviction in Canada. It would not be the last.
I certainly hadn't heard about Marshall's conviction and incarceration in the early 1970s. His conviction would have been minor news outside the province, but by 1989 it was major news. And it would go on to have echoes far beyond the lives of those involved at the time.
To me the story of Donald Marshall was incredible because it said the legal system is not always just and that sometimes justice is a long time coming, if it comes at all.Marshall was a young native man who was arrested after his friend Sandy Seale was fatally stabbed in Wentworth Park in Sydney on May 29, 1971. The two were 17, and the stabbing occurred after a teenage dance at a church hall.
The boys had met after the dance at a local park. They were standing on a bridge talking when a white-haired man approached them and asked for a cigarette and a match. When Sandy said he had none, the man said he didn't like blacks or Indians, and stabbed him in the stomach and slashed Donald on the arm.
This story would become lost, and not resurface for a dozen years. The rest is history, as they say, but history has a way of not going away.
Local police Sergeant MacIntyre investigated, but the crime scene was not secured, and statements were not taken at the scene or at the hospital.
Witness accounts which corroborated Donald's version of events were discounted in favour of accounts which pointed to his guilt.
Juvenile witnesses were interrogated in the absence of their parents and threatened with charges if they did not corroborate. One witness who was coerced was a 14-year-old girl.
On June 5 Marshall was charged with murder. Police would not elaborate on the break in the case that allowed them to lay charges, but at trial a teenager said he saw Donald stab Sandy in an argument.
We now know that witness was coerced to testify to events he did not see.Crown prosecutor MacNeil pursued a case based on shaky witness testimony, and the defense was, by all accounts, weak. When one of the witnesses attempted to alter his testimony, the prosecutor made it apparent he could be charged with perjury. Judge Drubinsky made it clear the defense had to stick to the agreed-upon statement of facts about what happened that night in the park.
We now know that statement was false, but a case built on lies could never arrive at the truth. It took four hours for the jury to convict.
The case was appealed, but weakly, because attorney Rosenblum didn't really expect the outcome to change. However, he was operating without full disclosure of the facts.
Evidence arose which affirmed Marshall's version of events and pointed to Roy Ebsary as the mystery assailant. Furthermore, evidence collected by RCMP Staff Sergeant Wheaton showed that eyewitness testimony had been perjured, and that Ebsary was probably responsible.
When the case did go to appeal in 1982 the deputy attorney general tried to prevent the acquittal. And a prosecutor on the original case sat on the appeal, raising issues of conflict of interest.
However, in the end, the appeal court judges concluded that Marshall was responsible for whatever injustice had happened. And the Supreme Court ultimately decided that those judges could not be questioned about their decision.
In a stinging indictment of that decision, the royal commission said there had been a grievous miscarriage of justice, which meant all those people involved in the investigation and prosecution were part of the injustice. Yet none of them went to jail or suffered in any way - not the police, the lawyers or the judges.
Marshall was finally exonerated during the inquiry and he went on to win another fight, in his appeal against being charged for fishing eels in 1993. The 1999 Supreme Court decision recognized native sovereignty based in historic treaties.The wrongful conviction case opened up a new understanding of problems in the criminal justice system. And the fishing case opened up new opportunities for natives in Canada.
Would he have picked these fights if he had a choice? Probably not, but he didn't back away from them either.
He might not have chosen it, but he had quite a life.
This article originally appeared in the Daily Gleaner, Aug 11, 2009
Another wrongful conviction surfaces in Manitoba
Last week CBC news reported there was a strong likelihood that a wrongful conviction has surfaced in Manitoba.
If true, it is another in a string of wrongful convictions in a province which sent Thomas Sophonow to prison for a murder he didn’t commit in the 1980s and then James Driskell in the 1990s.
Stanley Ostrowski has submitted a bail application pending review of his trial for murder, a crime he has spent 23 years in jail for, a crime he says he didn’t commit.
He was convicted of firstdegree murder for the execution of Robert Nieman, a police informant, in 1987. Three other men were also charged in the slaying.
Ostrowski has always said he didn’t commit the crime, and now his lawyers, James Lockyer and Alan Libman of the Association in Defence of the Wrongfully Convicted, have filed a petition for his release on bail while they await a review by the justice minister.
The federal Justice Department and its conviction review group tasked a Halifax lawyer with reviewing the case. It is reported he says there’s a reasonable basis to believe a wrongful incarceration occurred.
It is not known on what basis he came to that conclusion, but in similar cases, new evidence has turned up since the original conviction which would support the innocence of the accused. Such new evidence could include witness recantation, evidence of police coercion, legal error or DNA evidence.
The minister of justice is pretty much the last hope for the wrongfully convicted, and he or she must be satisfied there is a reasonable basis to conclude that a miscarriage of justice has occurred. In the past this has resulted in either a new trial or a referral to the Court of Appeal.
In Nova Scotia, the Marshall case resulted in an Appeal Court hearing in 1982, while in Saskatchewan, the Milgaard case resulted in a Supreme Court hearing. Both cases involved failures in the administration of justice, although officials involved in those cases were exonerated of any wrongdoing.
What is characteristic of most wrongful convictions is that they are based on factors such as eyewitness misidentification, legal error or police tunnel vision. In the Morin case, for example, police quickly focused on a young man and pursued his guilt single-mindedly.
However, what is interesting in this case is that attention is not being pointed at the usual suspects — the police, witnesses or a judge. In this case questions are being raised about the prosecutor. Prosecutors have been found to be responsible in many U.S. cases of wrongful conviction.
Ostrowski’s case was prosecuted by George Dangerfield, a high-ranking Crown attorney in charge of trying both James Driskell and Thomas Sophonow.
Suspicion was raised about Dangerfield in 2006 during the public inquiry into Driskell’s wrongful conviction, in part because of the large volume of cases he conducted in the 1980s and the 1990s and the fact that no other Crown prosecutor has been responsible for prosecuting two wrongful convictions.
In response to criticisms, Manitoba has retained a retired Ontario judge to review some of Dangerfield’s cases.
The key issue seems to be whether evidence was disclosed by the prosecution which could have worked to the advantage of the defense.
Given that the test in a criminal court is “beyond a reasonable doubt,” evidence that might sway a jury to acquit the accused is highly important.
Given the large number of cases prosecutors handle and the fact that there is a lot of pressure to win, and a work culture which rewards individual success, there are situational inducements to deviate. The nature of the trust relationship puts prosecutors in a special position with both responsibility and yet the power to abuse.
There is no evidence yet of wrongdoing, but it is instructive that the focus of the judicial review is going to be disclosure. At the time of Ostrowski’s trial, there was no legal requirement to disclose evidence which might have helped his defense.
No legal requirement perhaps, but there certainly was a moral one.
This article originally appeared in the Daily Gleaner, Sept 24, 2009. http://dailygleaner.canadaeast.com/opinion/article/801901
If true, it is another in a string of wrongful convictions in a province which sent Thomas Sophonow to prison for a murder he didn’t commit in the 1980s and then James Driskell in the 1990s.
Stanley Ostrowski has submitted a bail application pending review of his trial for murder, a crime he has spent 23 years in jail for, a crime he says he didn’t commit.
He was convicted of firstdegree murder for the execution of Robert Nieman, a police informant, in 1987. Three other men were also charged in the slaying.
Ostrowski has always said he didn’t commit the crime, and now his lawyers, James Lockyer and Alan Libman of the Association in Defence of the Wrongfully Convicted, have filed a petition for his release on bail while they await a review by the justice minister.
The federal Justice Department and its conviction review group tasked a Halifax lawyer with reviewing the case. It is reported he says there’s a reasonable basis to believe a wrongful incarceration occurred.
It is not known on what basis he came to that conclusion, but in similar cases, new evidence has turned up since the original conviction which would support the innocence of the accused. Such new evidence could include witness recantation, evidence of police coercion, legal error or DNA evidence.
The minister of justice is pretty much the last hope for the wrongfully convicted, and he or she must be satisfied there is a reasonable basis to conclude that a miscarriage of justice has occurred. In the past this has resulted in either a new trial or a referral to the Court of Appeal.
In Nova Scotia, the Marshall case resulted in an Appeal Court hearing in 1982, while in Saskatchewan, the Milgaard case resulted in a Supreme Court hearing. Both cases involved failures in the administration of justice, although officials involved in those cases were exonerated of any wrongdoing.
What is characteristic of most wrongful convictions is that they are based on factors such as eyewitness misidentification, legal error or police tunnel vision. In the Morin case, for example, police quickly focused on a young man and pursued his guilt single-mindedly.
However, what is interesting in this case is that attention is not being pointed at the usual suspects — the police, witnesses or a judge. In this case questions are being raised about the prosecutor. Prosecutors have been found to be responsible in many U.S. cases of wrongful conviction.
Ostrowski’s case was prosecuted by George Dangerfield, a high-ranking Crown attorney in charge of trying both James Driskell and Thomas Sophonow.
Suspicion was raised about Dangerfield in 2006 during the public inquiry into Driskell’s wrongful conviction, in part because of the large volume of cases he conducted in the 1980s and the 1990s and the fact that no other Crown prosecutor has been responsible for prosecuting two wrongful convictions.
In response to criticisms, Manitoba has retained a retired Ontario judge to review some of Dangerfield’s cases.
The key issue seems to be whether evidence was disclosed by the prosecution which could have worked to the advantage of the defense.
Given that the test in a criminal court is “beyond a reasonable doubt,” evidence that might sway a jury to acquit the accused is highly important.
Given the large number of cases prosecutors handle and the fact that there is a lot of pressure to win, and a work culture which rewards individual success, there are situational inducements to deviate. The nature of the trust relationship puts prosecutors in a special position with both responsibility and yet the power to abuse.
There is no evidence yet of wrongdoing, but it is instructive that the focus of the judicial review is going to be disclosure. At the time of Ostrowski’s trial, there was no legal requirement to disclose evidence which might have helped his defense.
No legal requirement perhaps, but there certainly was a moral one.
This article originally appeared in the Daily Gleaner, Sept 24, 2009. http://dailygleaner.canadaeast.com/opinion/article/801901
Thursday, September 24, 2009
Milgaard Inquiry Quotable Moment
In looking at the Milgaard Inquiry report, trying to find an explanation of 'who did what that led to what went wrong', I came across this quote in the Executive Summary:
"In the practice of the day, [Prosecutor] Caldwell did not see the complete police file. He received some police reports, but not all, and reviewed 95 civilian statements at the request of defence counsel Tallis, looking for evidence tending to show that the accused might be innocent. [Similarly] Caldwell's disclosure to Tallis met the standards of the day ... [but] did not disclose evidence of certain sexual assaults in the area in 1968 ... Evidence of these assaults, had they been known to Tallis at the time, might have led him on lines of inquiry ... that the murder could have been committed by a third party, thus possibly raising a reasonable doubt of Milgaard's guilt. This non-disclosure was the product of an honest, if mistaken, belief by Caldwell that the evidence was not useful to the defence. By present standards, such evidence would have been disclosed as a matter of course ..."
By present legal standards, certainly, but one would think by moral standards, even then ...
"In the practice of the day, [Prosecutor] Caldwell did not see the complete police file. He received some police reports, but not all, and reviewed 95 civilian statements at the request of defence counsel Tallis, looking for evidence tending to show that the accused might be innocent. [Similarly] Caldwell's disclosure to Tallis met the standards of the day ... [but] did not disclose evidence of certain sexual assaults in the area in 1968 ... Evidence of these assaults, had they been known to Tallis at the time, might have led him on lines of inquiry ... that the murder could have been committed by a third party, thus possibly raising a reasonable doubt of Milgaard's guilt. This non-disclosure was the product of an honest, if mistaken, belief by Caldwell that the evidence was not useful to the defence. By present standards, such evidence would have been disclosed as a matter of course ..."
By present legal standards, certainly, but one would think by moral standards, even then ...
Tuesday, September 22, 2009
Wrongful Convictions and Media Tunnel Vision
There does not seem to be much research on the relationship between the media and wrongful convictions. The main theme seems to be: 1/ that wrongful convictions happen when the police are pressured to find a suspect in the face of media panic; 2/ that the media sensationalize cases of wrongful conviction when they are discovered; and, 3/ that the media are instrumental in exposing cases of wrongful convictions.
While not doubting any of the foregoing it seems to me that a more intimate connection between the media and wrongful convictions might be theorized. For example in looking at media coverage of Donald Marshall in the Globe and Mail, the first mention comes in 1982 when his wrongful becomes evident and he is released on appeal. There are many different spokespeople, including him. Initially the main reason offered is eyewitness perjury, and not until later is a more nuanced explanation available.
However in 1971 the main source is the Cape Breton Post. The only authority is the police, and it is their version of events which is accepted and relayed to the public. At a point in the reporting of the trial it is mentioned how one witness recants in a courthouse corridor only to re-recant in court. At this tipping-point a very different story could have been written but was not.
This is media tunnel vision, where one direction is pursued to the exclusion of others.
While not doubting any of the foregoing it seems to me that a more intimate connection between the media and wrongful convictions might be theorized. For example in looking at media coverage of Donald Marshall in the Globe and Mail, the first mention comes in 1982 when his wrongful becomes evident and he is released on appeal. There are many different spokespeople, including him. Initially the main reason offered is eyewitness perjury, and not until later is a more nuanced explanation available.
However in 1971 the main source is the Cape Breton Post. The only authority is the police, and it is their version of events which is accepted and relayed to the public. At a point in the reporting of the trial it is mentioned how one witness recants in a courthouse corridor only to re-recant in court. At this tipping-point a very different story could have been written but was not.
This is media tunnel vision, where one direction is pursued to the exclusion of others.
Friday, September 11, 2009
CCTV and eyewitness misidentification
This is an interesting article about the role of CCTV in wrongful convictions, in producing images with visual certainty ... http://forensicphotoshop.blogspot.com/2009/08/cctv-at-heart-of-wrongful-conviction.html The link goes to an article in the Guardian, where it says "Four people said they recognised William Mills as the man who robbed a bank in Glasgow's West End – but all of them were wrong. Having endured a dawn raid on his family home and roughly a year in prison, Mills was freed earlier this year. With more eyewitness evidence being gathered than ever before, could he be part of a growing trend of wrongful convictions?": http://www.guardian.co.uk/uk/2009/aug/18/eyewitness-evidence-wrongful-conviction
cases in the news
Three incredible stories of prosecutorial wrongdoing, judicial error, and police tunnel vision.
"Blinded by tunnel vision: What the execution of Cameron Todd Willingham can teach us about wrongful convictions," Huffington Post, September 9, 2009, http://www.huffingtonpost.com/john-maki/blinded-by-tunnel-vision_b_281545.html
"Man returns to share story of wrongful conviction," Ironton Tribune, September 11, 2009, http://www.irontontribune.com/news/2009/sep/09/man-returns-share-story-wrongful-conviction/
"Retrial starts in Drumgold conviction suit," Boston Globe, September 11, 2009, http://www.boston.com/news/local/massachusetts/articles/2009/09/11/retrial_starts_in_drumgold_conviction_suit/
"Blinded by tunnel vision: What the execution of Cameron Todd Willingham can teach us about wrongful convictions," Huffington Post, September 9, 2009, http://www.huffingtonpost.com/john-maki/blinded-by-tunnel-vision_b_281545.html
"Man returns to share story of wrongful conviction," Ironton Tribune, September 11, 2009, http://www.irontontribune.com/news/2009/sep/09/man-returns-share-story-wrongful-conviction/
"Retrial starts in Drumgold conviction suit," Boston Globe, September 11, 2009, http://www.boston.com/news/local/massachusetts/articles/2009/09/11/retrial_starts_in_drumgold_conviction_suit/
Subscribe to:
Posts (Atom)
