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Sermonette February 2005

Tunnel vision

The Heads of Prosecutions Committee report on miscarriages of justice released this week devotes considerable attention to "tunnel vision." I have reprinted that section below for easy reference. The report does not address malice directly; in fact it allows that tunnel vision is a human foible sometimes arising from the best of intentions.

There were no good intentions on the part of the three cases I now mention. There has been deliberate shaping of "facts," withholding exculpatory eviudence and general persuing of courses other than those of justice.

I guess prosecutors have to be deferential to one another when they get together to write a report critical of behavior in their profession. I am under no such restraint. I would go even farther and say that if prosecutors in Saskatchewan were to keep or lose their jobs based on how they measured up to the guidelines in this report, half of them would be gone.

We will discover when the Wilfred Hathway case comes to preliminary hearing that tunnel vision was the driving force behind Brian Dueck's request for an RCMP lifestyles' sting and Sgt. Donald Yonkman's participation in fulfilling the sting.

With wrongful convictions in the news this month, we find it necessary to point out that there are many more wrongfully convicted people waiting in the wings for an opportunity to be exonerated.

One such is Leon Walchuk. This was a clear case of tunnel vision which was maliciously driven. The defence was blindsided and Judge Larry Kyle got caught in the hysteria himself. He was troubled by the lack of motive. Instead of rejecting the Crown's circumstantial case and accepting Corinne Walchuk's death was accidental, he blamed the devil himself who, he claimed, must have driven Walchuk to commit an otherwise inexplicable crime.

Another case which eluded us until recently is Darren Koehn.

His own affidavit from 1996 puts clearly what happened in the horrible death of his three year old stepson:

"On September 1 1994, I accidentally landed on my little stepson, Jeremy Harris, while vaulting over a coffee table.

     I had fallen asleep on an "L"-shaped sofa in the living room of our basement apartment. Jeremy had the flu and had been vomiting most of the day. He had been sleeping on the sort arm of the "L". I started awake to a sound of vomiting and crying from Jeremy and sat up on the sofa. I saw blankets at the end of the coffee table nearest where he had been sleeping and thought he had fallen off the sofa. Still half asleep, I leapt over the coffee table, intending to help him, only to find that Jeremy was not where I thought he was, but was lying parallel to the coffee table. At the same instant I saw him, I landed on him.

     I instantly tried to spread my weight, and thought I had succeeded in doing so. Immediately afterwards I sat Jeremy on the sofa and articulated his legs and arms and asked him if he was okay. He said he was okay. Nothing seemed to be broken, although at that juncture he held his hand to his right cheek. He did not complain about his stomach. However, later that day, Jeremy seemed to have a seizure, and aspirated his vomit. I picked him up in my arms, but realized he had lost consciousness. I called for help from the neighbour upstairs and together we tried CPR. We called 911 for an ambulance.

     Paramedics arrived and took little Jeremy to the hospital, where to my everlasting sorrow and regret he was pronounced dead about an hour after he lost consciousness. Cause of death was aspiration of vomit into the lungs, caused by trauma to the mesentery by a blunt impact to his abdomen, which must have been caused when I landed on him."

However, a zealous ER doctor determined Jeremy had injuries from before the accident and Koehn was targeted by police. The tunnel got really narrow when cops discovered books and runes related to Wicca, a pagan religion. They were in the tunnel of ignorance now, and no looking back. Even though Wicca has nothing to do with Satanism, they concluded Jeremy had been victimized by a Satanic cult. The Crown succeeded in turning an accident into a homicide. Koehn is serving his eleventh year and is unlikely to get parole because he will not own up to the crime.

Several judges have rubberstamped this stupidity.

One issue I find interesting in this case is the concept of negligence. On the website devoted to his defence, there is some indication that Koehn would plead guilty to criminal negligence. This is, I think, an indication of the lengths to which an innocent incarcerated person can be driven. When Darren Koehn says he is guilty of negligence for misstepping and then failing to appreciate the extent of injury to the child, I would think he is admitting to a human failing and the guilt many of us feel about the consequences of actions we did or failed to do.

If it was an accident it was an accident. Once you step out of the tunnel it is clear that Jeremy's death was an accident. One would hope that the furniture has been rearranged so that people no longer leap over the coffee table when they get off the couch. But this is no doubt something Darren Koehn has agonized over many times and is none of the public's business. It was an accident and Darren Koehn is innocent.

As long as tunnel vision is rewarded, as with Gary Steinke who set up Jason Dix and Brian Dueck who created the tunnel for prosecutor Matt Miazga and therapist Carol Bunko-Ruys to snake through, it will flourish. We've got to block off those tunnels from the other end.

I have illustrated this with photographs from the New York tunnels. --Sheila Steele, January 29, 2005

Tunnel vision

FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE, January 2005

4. TUNNEL VISION

I. INTRODUCTION

Tunnel vision has been defined as "the single minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably colour the evaluation of information received and one's conduct in response to the information."[114] Tunnel vision, and its perverse by-product "noble cause corruption,"[115] are the antithesis of the proper roles of the police and Crown Attorney. Yet tunnel vision has been identified as a leading cause of wrongful convictions in Canada and elsewhere.

The role of the Crown Attorney has received considerable judicial comment, with frequent emphasis upon the inherent fairness that is integral to the role. The most oft-quoted comment is from Boucher v. The Queen, where Rand J. said:[116]
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is represented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than [sic] which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

Crown Attorneys have enormous discretionary power, and the exercise of this discretion must be characterized by fairness and impartiality. The conduct of Crown Attorneys must be consistent with that expected of an Attorney General. Respect for the differing roles of all parties in the criminal justice system should be a hallmark of the Crown Attorney. Casting aside any perceived goal of "winning," the role of the Crown Attorney is quasi-judicial in nature. As stated in Regan v. The Queen (2002), 161 C.C.C. (3d) 97, " objectivity and fairness is an ongoing responsibility of the Crown, at every stage of the process." The Crown Attorney, however, is still expected to be a strong and fearless advocate and hence assertive in putting forward the case. This dichotomy requires a careful balance between advocacy and objectivity. The prosecutor may adopt an adversarial role in the trial process, but the prosecutor should not be a zealot. Within the context of tunnel vision, the Crown Attorney must constantly strive to independently assess the police investigation and the evidence against an accused.

Specific factors that may contribute to Crown tunnel vision, and thus impair the proper role of the Crown Attorney, include:

(1) close identification with police and/or victim;
(2) pressure by the media and/or special interest groups; and
(3) isolation from other perspectives.[117]

Tunnel vision must be guarded against vigilantly, as it is a trap that can capture even the best police officer or prosecutor.

II. CANADIAN COMMISSIONS OF INQUIRY

All three Canadian inquiries into wrongful convictions have commented on the perils of tunnel vision, and have made recommendations for police and Crown education on the topic. The Marshall Inquiry emphasized the need for a separation between police and Crown functions. The Sophonow Inquiry recommended regular, mandatory training for police officers on tunnel vision. The Morin Inquiry extended this recommendation to include Crown Attorneys.

a) The Royal Commission into the Donald Marshall, Jr., Prosecution

The Marshall Inquiry stated that "in addition to being accountable to the Attorney General for the performance of their duties, Crown prosecutors are accountable to the courts and the public. In that sense, the Crown prosecutor occupies what has sometimes been characterized as a quasi-judicial office, a unique position in our Anglo-Canadian legal tradition" (pp. 227-28). The Marshall Inquiry emphasized that this role must remain distinct from (while still cooperative with) that of the police (at p. 232):
We recognize that cooperative and effective consultation between the police and the Crown is also essential to the proper administration of justice. But under our system, the policing function -- that of investigation and law enforcement -- is distinct from the prosecuting function. We believe the maintenance of a distinct line between these two functions is essential to the proper administration of justice.

b) The Inquiry Regarding Thomas Sophonow

Tunnel vision
? Tunnel vision is insidious. It can affect an officer or, indeed, anyone involved in the administration of justice with sometimes tragic results. It results in the officer becoming so focussed upon an individual or incident that no other person or incident registers in the officer's thoughts. Thus, tunnel vision can result in the elimination of other suspects who should be investigated. Equally, events that could lead to other suspects are eliminated from the officer's thinking. Anyone, police officer, counsel or judge can become infected by this virus.
? I recommend that attendance annually at a lecture or a course on this subject be mandatory for all officers. The lecture or course should be updated annually and an officer should be required to attend before or during the first year that the officer works as a detective.
? Courses or lectures that illustrate with examples and discuss this problem should be compulsory for police officers and they would undoubtedly be helpful for counsel and judges as well.

c) The Commission on Proceedings Involving Guy Paul Morin
Recommendation 74 - Education respecting tunnel vision
One component of educational programming for police and Crown counsel should be the identification and avoidance of tunnel vision. In this context, tunnel vision means the single minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one's conduct in response to that information.
Recommendation 92 - Structure of police investigation
Investigating officers should not attain an elevated standing in an investigation through acquiring or pursuing the "best" suspect or lead. This promotes competition between investigative teams for the best lead, results in tunnel vision and isolates teams of officers from each other.

III. MACFARLANE PAPER

In his paper, Bruce MacFarlane Q.C. noted that public outrage in high profile cases can translate into intense pressure on the police to arrest and on prosecutors to convict, with speed becoming the overriding factor. He explained how this can contribute to tunnel vision, at p. 40:
Tunnel vision sometimes sets in. The investigative team focuses prematurely, resulting in the arrest and prosecution of a suspect against whom there is some evidence, while other leads and potential lines of investigation go unexplored. It is now clear that that is precisely what occurred in the cases of Morin and Sophonow.

MacFarlane emphasized that raising awareness of the existence of tunnel vision is critical. He recommended that seminars for police and prosecutors should be held, allowing for frank discussion of tunnel vision and stated that police should continue to pursue all reasonable lines of enquiry even where a viable suspect has been identified.

IV. PRACTICES CURRENTLY IN PLACE TO PREVENT TUNNEL VISION

Current Educational Efforts
? Education for Crowns on the role of the Crown and tunnel vision has been provided in a number of provinces. For instance, Crown training occurred in Newfoundland after the release of the Morin Inquiry, and again in 2003. Ontario hosted joint Crown, defence, police and forensic scientist conferences in the fall of 1998 to deal with the recommendations of the Morin Inquiry, and provided new Assistant Crown Attorney training in 1999 and 2000. In 2002, Manitoba hosted a post-Sophonow Inquiry conference with participation from defence, the Crown, and the judiciary.
? Several specialized courses, which incorporate and study some of the individual causes of wrongful conviction, are being conducted by police services and police academies. For instance, the major case management and general investigation courses include education on tunnel vision.

Crown Initiatives
? Crown policies on the role of the Crown have been issued in a number of provinces.

V. RECOMMENDATIONS

While the provision of lectures on the topic of tunnel vision are important, they are not the sole answer to its prevention. The best protection against tunnel vision is a constant and acute awareness of the role of the Crown Attorney, and the relationship of the Crown and police to each other and to other participants in the justice system.

The separation of police and Crown roles is a well-established principle of our criminal justice system. This separation has led to cultural differences that should be recognized by both groups. Mutual independence of Crowns and police is key to the prevention of tunnel vision, as it creates a system of institutional checks and balances. It is important to recognize, however, that different provinces have implemented this principle in various ways, and that varying nuances and complexities exist in the relationships between Crowns and police in different jurisdictions.

For instance, generally the role of the Crown at the pre-charge stage is advisory in nature, and not directive. In some jurisdictions, however, police require pre-charge approval from the Crown. Even in jurisdictions where Crown pre-charge approval is not required, there may, by necessity, be Crown involvement prior to the charge being laid. One example would be a case involving wiretaps. In Regan v. The Queen (2002), 161 C.C.C. (3d) 97, the Supreme Court of Canada accepted the necessity of pre-charge involvement in certain circumstances. The Court concluded that objectivity is not necessarily compromised by pre-charge involvement. However, a distinction should be drawn between pre-charge advice and advising the police on the grounds to lay a charge. It is in this latter situation that the spectre of tunnel vision usually arises.

With the possible exception of mega-cases,[118] it is recommended that all jurisdictions consider adopting a "best practice" of having a different Crown Attorney prosecute the case than the Crown Attorney who provided the charging advice. This recommendation, however, must take into account the realities of some prosecution services, where there may be a single prosecutor for a large geographic area. In some communities there may be only one Crown Attorney who handles many "routine" matters and is the sole contact with the local police. This can lead to close identification between the Crown and police, and hence a reluctance to disagree. In such situations, second opinions and supervision by senior/regional Crown counsel should always be available. There should be clear identification of the roles and accountabilities within the prosecution service, including the hierarchy of responsibility. In jurisdictions without pre-charge screening, it is further recommended that there be a speedy review of the charge so as to identify any problems at an early stage.

Consultations or case reviews may occur before, during, or after a prosecution. While these consultations may not be appropriate for every case, or even for every serious case, they can be used in situations where counsel are facing difficult, unique or unusual circumstances. Counsel with carriage of the case should be encouraged to review the case with other senior counsel to discuss legal, practical and advocacy strategies. Often cases require a method of problem solving and this case consultation mechanism can be used either as a preventative measure while the case is ongoing, or as a lessons learned session after the case is over. This consultation process is used by other professional groups, such as doctors, and is recognized as an effective tool.

After a charge is laid, the Crown has independent control over the charge and has the sole authority to proceed with the prosecution or withdraw the charge. Early consultation between prosecutors and police should be encouraged. It is important that police training emphasize this separate function of the Crown, so that in appropriate cases, the Crown Attorney may feel unhindered in deciding not to proceed any further with a charge. It is easy to envision situations where fear of criticism or unfavourable comparisons with other prosecutors could hamper the Crown Attorney from discharging his or her duties. This emphasis upon the separate function of Crowns and police also encourages Crowns to be open to theories that may be different from those initially put forward by the investigator. Crown counsel must always act as a challenge function to police officers and must bring critical eyes to bear on the evidence presented to them. They must always be prepared to consider alternate theories and explanations for such things as post-arrest conduct. While prosecutors and police officers must work together closely and co-operatively, the different responsibilities and the different standards they must apply should not be impaired.

A Crown Attorney must also be wary of decisions being influenced by media coverage or by negative responses by victims. The role of the Crown is often misunderstood by victims and the general public. The Crown Attorney's role as a quasi-judicial officer includes a duty to both the accused and the Court. It is therefore incumbent upon the Crown to foster respect for both the Court and the rights of the accused. Even when the role of the Crown is understood, decisions based upon sound legal analysis may be unpopular. It is therefore important that the workplace culture of prosecutors emphasize the role of the Crown Attorney, and that there be policies in place that support that role. Prosecutors must be wary of being caught up in the enthusiasm of the investigators. Workplace environments should encourage questions and consultations between individual Crown Attorneys. An openness to alternate views, including those held by defence counsel, is reflective of the independence of the Crown Attorney.

VI. SUMMARY OF RECOMMENDATIONS

The following practices should be considered to assist in deterring tunnel vision:
1. Crown policies on the role of the Crown should emphasize the quasi-judicial role of the prosecution and the danger of adopting the views and/or enthusiasm of others. Policies should also stress that Crowns should remain open to alternate theories put forward by defence counsel and other parties.
2. All jurisdictions should consider adopting a "best practice," where feasible given geographic realities, of having a different Crown Attorney prosecute the case than the Crown Attorney who advised that there were grounds to lay the charge. Different considerations might apply with mega-cases.
3. In jurisdictions without pre-charge screening, charges should be scrutinized by Crowns as soon as practicable.
4. Second opinions and case review should be available in all areas.
5. There should be internal checks and balances through supervision by senior staff in all areas with roles and accountabilities clearly defined and a lead Crown on a particular case clearly identified.
6. Crown offices should encourage a workplace culture that does not discourage questions, consultations, and consideration of a defence perspective by Crown Attorneys.
7. Crowns and police should respect their mutual independence, while fostering cooperation and early consultation to ensure their common goal of achieving justice.
8. Regular training for Crowns and police on the dangers and prevention of tunnel vision should be implemented. Training for Crown Attorneys should include a component dealing with the role of the police, and training for police should include a component dealing with the role of the Crown.

Critical to the success of any of these recommendations is the provision of resources to allow Crown Attorneys and police to fulfill their roles. Financial, as well as non-financial resources, will be necessary to encourage changes in organizational attitudes, practices and culture.

Above all it must be remembered that tunnel vision is not unique to a particular situation, province or indeed country.[119] As stated by Justice Cory in the Sophonow Inquiry, "tunnel vision is insidious."[120] It can thrive in any environment and thus there must be constant vigilance.

[114] Morin Inquiry (Recommendation 74).

[115] Sometimes referred to as "process corruption," noble cause corruption includes situations where a wrongful conviction is knowingly obtained under falsehoods or improper procedures because the police and/or prosecutor believe the accused to be guilty.

[116] (1955) S.C.R. 16 at 24.

[117] Loss of objectivity due to overexposure to particular crimes is arguably another factor.

[118] Mega-cases raise unique issues and may need to be exempt from this approach. Care must still be taken to avoid tunnel vision in such cases.

[119] See, for example, discussion and reports in the United Kingdom relating to "The Guilford Four" and "The Birmingham Six" and in Australia to the Chamberlain case.

[120] Sophonow Inquiry,p. 37.

Truth can never be told so as to be understood, and not be believ'd.
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Truth suppress'd, whether by courts or crooks, will find an avenue to be told. Sheila Steele, injusticebusters.com

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Truth crushed to earth will rise again. --William Cullen Bryant

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This is a pretty good scrapbook for the 1998-2002 period.

More Sermonettes

2001

January: Legal Treachery to keep Dueck's lies safe

2002

March, 2002 -- Gay Bashing still a legal sport in Saskatoon -- Even when it turns to murder

 

2003

 

Feb. 1: Where we stand

Feb. 15, 2003: Has Saskatchewan learned anything?

March 1: Connecting the dots

March 23, 2003: From Micro to Macro

March 25, 2003: About libel and malice

March 27: Gangs of Saskatoon: the police and prison guards

April 28, 2003: The Naked Truth

May 5: How low will they go?

May 15, 2003: Come clean Calvert, Cline!

May 30: Still smearing Milgaard - defamation is alive and well on the lawn of the Regina legislature and Precendent has been set as we reclaim our institutions

June 11, 2003: --Eric Cline carries on a corrupt tradition

Nov 7: Courage -- the only reward is justice

November 20: Just following orders

November 24: Mayor Atchison, community policing and graffiti

November 25: Michael Jackson

November 30: Corrupt officials must be severely punished: otherwise they just keep on putting the administration of justice in disrepute!

December 1: Christmas comes early for injustice warriors

December 4: Wide open Saskatchewan?

December 16: Crawling through the tunnel of justice since 1991

December 24: The Crown keeps right on breaking the law

December 30: Who will find justice under their tree?

 

2004

 

January 1. 2004: Unprecedented publicity and Happy New Year

January 8, 2004: Malice still afoot

January 10, 2004: Shame and mugshots

January 14, 2004: Telling more truth about the undefamable: McKillop and Quennell, the static duo

January 17, 2004: Fifth Estate returns and A working class hero is something to be

January 22,23, 2004: Justice is still prevailing -- it is just taking longer and Bits and pieces are now coming together to tell the story of the century

January 27, 2004: Telling the truth about the undefamable, restoring reputations to the defamed.

February 5, 2004: Negotiations and strategies: getting an intransigent government to remedy its damage

February 10, 2004: How many lawyers does it take to ruin a province? and Lawyer continues to treat people's lives as a cruel game: monopoly?

Febrary 16, 2004: Calvert is not King Arthur

March 29, 2004: Counting down to the damages trial

April 16, 2004: The internet, the courts and now the movies -- We will so what it takes to get justice

May 1, 2004: If Frank Quennell is any example of what former Justice Minister Chris Axworthy called "evolving," Saskatchewan is ready to kiss justice good-bye!

May 27, 2004: Some observations on Saskatchewan and justice

June 7, 2004:Media coverage of Monique Turenne's story illustrates journalistic laziness

June 8:, 2004 -- The police not only failed to serve and protect Don and Lorna Smith and their children but set them up for false charges and community shunning

September 2, 2004: A tale of three cops: Dueck, Gobeil and Schinkel -- with an update on how they get away with criminal obstruction of justice

November, 2004: Wilfred Hathway, Atif Rafay and Sebastian Burns -- RCMP stings offensive to community standards

November 11, 2004: Rogue Platoon? Identifying the rotten apples in Saskatoon Police Service and why we need a full public inquiry into our whole justice system

November 28, 2004: Can Justice Minister Quennell take a few more steps? The Prosecutors' office is still harbouring crowns who put the administrative of justice in disrepute

November 12, 2004: Saskatchewan Justice in chaos: The Stonechild report suggests it is.

November 28, 2004: The price for being a good judge or a good prosecutor

December 30: When the government interferes with the judiciary, we know a Police State is a dangerous possibility (The government appeal of the Klassen/Kvello decision)

 

2005

 

Jan 1, 2005: Chewed up digested and spit out

Jan. 5, 2005: More on chief Sabo

February 18, 2005: Tunnel vision: Darren Koehn, Wilf Hathway and Leon Walchuk

March 2: Fixing the system: Time to quit talking and implement previous commission recommendations

March 19, 2005 : Injustice as ShowBiz