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
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