|
 January
25, 2005: The
Federal government released the first
national examination of the reasons for so many wrongful convictions
in Canada. This
should be required reading for every prosecutor, cop and criminal
defence lawyer in the country. News reports
Update on wrongful convictions in Canada, October,
2004 | Milgaard
Inquiry
 See list on sidebar for more wrongfully
convicted Canadians
February, 2005: Joe Warren's
website The Wrong Guy.
Check it out!
Joe Warren:
If Joe Warren's life can teach us anything, it is that it is
too easy in this country to hang a crime on the wrong person.
By: Dan
Lett, Staff reporter Winnipeg Free Press, Feb. 24, 1999
In 1983, Warren.
now 60, was convicted of two counts of first-degree murder for
ordering the execution-style slaying of an Edmonton drug dealer
and his prostitute girlfriend.
As shown in
a Free Press story yesterday, Warren, who was convicted on the
basis of questionable testimony from a jailhouse informant, is
the victim of a justice system that aspires to noble purposes.
But there is no nobility in the lost years Warren spent in jail,
fitted to the crime by anxious police, condemned by a frail and
fickle court system and buried alive by an appeal system that
saw a problem but didn't fix it.
NUMBERS
GROWING.
It's possible
Warren will join growing roster of victims of injustice. Some
are national celebrities - - Donald Marshal Jr., David Milgaard
and Guy Paul Morin. Less known, but as badly treated , are people
like Benoit Proulx, Gregory Parsons, Norman Fox, or Peter Frumusa.
Each month
in Canada, it seems, a new name is added to the ranks of the
wrongly convicted. There are so many now that some leaders in
the justice system believe they are not aberration but part of
a pattern.
In the official
government inquiry into the conviction of Guy Paul Morin, Justice
Fred Kaufman wrote; " The case of Guy Paul Morin is not
an aberration. The causes of Mr. Morin's conviction are rooted
in systemic problems, as well as the failing of individuals.
It is no coincidence that the same systemic problems are those
identified in wrongful conviction in other jurisdictions world
wide."
Warren's case
is a prime example of how the justice system fails. A gangland-style
execution shocks a community and put an incredible pressure on
police to bring the killers to justice. But the slaying is a
who done it without obvious suspects or solid evidence. Investigator
are left trying to find some one - anyone- who might be right
for the crime, and then tailor the evidence to fit that suspect.
Evidence that doesn't bolster the police theory is discarded
or concealed.
In Joe Warren's
case, authorities ignored the fact the man who admitted to pulling
the trigger, and his accomplices, claimed Warren was not involved.
There was no physical evidence tying him to the crime. And the
jailhouse informant used to convict Warren was a proven liar
whose testimony was fraught with factual error.
Did authorities
prove Warren guilty beyond a reasonable doubt..? Although it
as been represented as a solid conviction, closer examination
shows peace after peace of worthless or suspect evidence piled
up until guilt looks apparent. On its own, Warren's story is
sad. As part of a string of miscarriages of justice, his tale
is an indictment of the system.
"In these
cases, we get it wrong so often that I think we have to stop
pretending that we ever got it right." Said Osgoode Hall
law professor Diana Martin, an expert in the root cause of wrongful
convictions and co-founder of the Toronto-based Innocence Project.
"I don't think we know how to catch the people we need to
catch."
Martin says
the intense public and political pressure on police and prosecutors
in whodunit case cause investigators and prosecutors to cut comers,
manipulate witnesses and dress up scientific evidence to bolster
cases that would otherwise be feeble or none-existent.
It is nearly
impossible to estimate the number of wrongful convictions, Martin
says, in no small part because of the systemic barriers that
stand in the way of a convict trying to prove innocence. The
justice system abhors admitting a mistrial and there is rarely
assistance for claimants to hire investigators or lawyers, Martin
adds.
Rev. Jim McCluskey
believes the problem is near-epidemic in Canada and the United
States. McCluskey is founder of Centurion Ministries, a New Jersey
based non profit organization that investigates cases of possible
wrongful conviction in both the United States and Canada. McCluskey's
successes include the exoneration of David Milgaard, one of the
longest-serving victims of wrongful conviction in North America.
Of the more
than 50 cases Centurion Ministries has taken on over the past
15 years, 19 resulted in exonerations. In another three, the
applicants either died before being free or were executed despite
the presence of new and possibly exculpatory evidence. Centurion
has accomplished all this with no official funding.
Like Martin,
McCluskey says the most serious the crime, the more likely a
wrongful conviction. In the United States, McCluskey notes of
the roughly 500 convicts sentence to die over the last 22 years,
75 we exonerated before execution, 15 p. cent of the death-row
population.
In some states,
there are nearly as many exonerations as executions on death
row. According to Northwestern University in Chicago, Illinois
has had ii executions and nine exonerations since 1976. Florida
has had 43 executions and 19 exonerations.
In Canada,
the Association in Defense of the Wrongly Convicted ( AIDWYC
)is the primary source of assistance for people claiming innocence.
Like Centurion Ministries, AIDWYC receives no public assistance
of any type. Also like Centurion, it has rung up some impressive
successes.
Since 1993,
AIDWYC has helped free four men- Milgaard and Morin among them-
and has at least five more cases where exoneration is likely.
Toronto lawyer James Lockyer, AIDWYC'S point man in many of its
cases, says the exoneration rate clear evidence that there are
far more wrongful convictions than most people suspect.
"I believe
there are at least 40 life prisoners in Canadian jails rights
now," He said, serving time for crimes they didn't commit."
`IN THESE
CASES, WE GET IT WRONG SO OFTEN . . . WE HAVE TO STOP PRETENDING
THAT WE EVER GOT IT RIGHT'
A PATTERN
OF INJUSTICE
There are few
jurisdictions in the world with an Anglo-American justice system
that have not been touched by controversy over wrongful conviction.
After a decade
of controversy over the wrongful conviction of suspected Irish
terrorists, the United Kingdom set up the Criminal Cases Review
Commission in January 1997. The CCRC is an investigatory body
independent of government that recommends cases for judicial
review.
Of the first
seven convictions it referred for appeal, five convictions were
overturned and two are pending. Four of the successful applicants
were previously denied by the British Home Office when it held
primary responsibility for reviewing claims of innocence. The
Home Office ordered new trials for fewer than one case per year.
Convicted
by juries, Exonerated by Science is a detailed study of 10,000 sexual
assault cases where DNA tests were performed at the FBI main
forensic laboratory in Washington, D.C. In 20% per cent of the
cases, DNA tests proved police had arrested and charged the wrong
person.
In Canada,
detailed analysis of the problem of wrongful convictions has
focused on two case- Donald Marshall Jr. and Guy Paul Morin.
Both cases sparked commission inquiry that examined both the
specifics of the case and broad systemic issues. Both inquiries
concluded that wrongful convictions were more common than previously
thought.
The Martin
inquiry included a 1997 survey of defence counsel bu the University
of Toronto criminologist Tony Doob Lawyers were asked to identify
cases where they believe an innocent person was convicted. There
were 219 respondents; 99 of them had seen at least one such a
case. Nearly 50 had seen it more than once.
There have
been so many confirmed cases of wrongful conviction in the past
five years that activists and legal scholars worldwide have,
for the first time, been able to identify the classic model of
a wrongful conviction. During the Morin inquiry, the Association
in Defence of the Wrongly Convicted filed an exhaustive comparison
of wrongful convictions from Canada, the U.S. and the United
Kingdom.
HALLMARKS
"When
you look at all these cases, you see time and time again the
same errors." said Toronto lawyer Mara Green, one of the
authors of the AIDWYC international comparison. "This is
not just a one -in-a-million thing. It's happening all the time."
The hallmarks
include misidentification by eye witnesses, sloppy or corrupt
police investigation and prosecutions, incompetent defence, socio-economic
factors, and abandonment of the principle of innocent until proven
guilty."
Despite a flood
of miscarriages of justice in the U.S., Centurion's McCluskey
said several states and the U.S. Supreme Court have made it harder
for convicts to appeal their conviction and secure an exoneration.
"Everyone is in a total state of denial." said McCluskey.
In Canada,
there has been a similar lack of progress. Recently, Justice
Minister Anne McLellan announced she was launching a national
consultation on the current system of reviewing claim of wrongful
convictions. But activist doubt she'll trigger real reform or
create an independent commission on the U.K. model. IVAN ROY,
SENIOR COUNSEL for the federal Justice Department and head of
the Criminal Convictions Review Group ( CCRG )in Ottawa, acknowledge
that wrongful convictions do occur and that it is important that
Canada have an effective system for evaluating claims.
But he said
it's foolish to argue that they are common. "There have
been mistakes made in the past," Roy said. "There will
be in the future."
Ottawa has,
however, quietly made changes that indicate the Justice Department
knows there is a bigger problem The department has reassigned
some senior staff in the CCRC who were perceived as biased against
applicants. And McLellan recently agreed to devote more resources
to speed up processing of applications.
But Ottawa
still refuses to provide financial support to applicants to hire
lawyers and investigators. And McLellan is on record as opposing
a U.K. style review commission. Perhaps most importantly, federal
and provincial governments, in their zeal to close the book on
serious crimes, forget a chilling fact: When the wrong person
is imprisoned, the real criminal is allowed to run free.
"The police
will say to you that it is as big a problem for the guilty to
go free as for the innocent to be convicted." said Allen
Grant, a former British police superintendent who is now a law
professor in Toronto.
"And I
say they are wrong. When you convict an innocent person, the
person who de facto did the crime is not only free, but he has
every police officer and prosecutor in the country general behind
him saying he's innocent."
THE CLASSIC
WRONGFUL CONVICTION:
* Who-done-it?
Crime. A violent crime where police have no easy identifiable
suspects and little or no evidence from the crime scene. The
absence of a suspect puts police under tremendous pressure to
find someone - anyone- who can fit the bill.
* Manipulation
of evidence or testimony. Under pressure to find a suspect, police
can coerce or manipulate testimony, discard evidence or even
plant evidence that helps make the case. Sometime through sloppiness,
valuable evidence is lost or damaged.
* Misidentification
by eye witnesses. Even the victims of violent crime can identify
the wrong assailant. Eyewitnesses. Even the victim of violent
crime can identify the wrong assailant. Eyewitness testimony
is so inherently frail it has been subjected to restrictions
in some jurisdictions.
* Jailhouse
informants. The use of criminal informants has become one of
the most profound alarm bells for a wrongful conviction. Many
times these informants are pathological liars who are complicit
in attempts to frame an accused.
* Junk science.
Many case of wrongful conviction started with use less or misleading
scientific evidence. Such evidence, in fact, has little ability
to tie anyone to a crime. But it is introduced to create the
impression of guilt.
* Incompetent
defence . The lack of a capable defence attorney is considered
among the leading causes of wrongful conviction.
* Socio- economic
factors Suspects who are poor, or members of a minority group,
have a far greater chance of being draw into a wrongful conviction
because the system is more successful in portraying them as "likely"
suspects.
* Abandonment
of the principle of "innocent until proven guilty."
the longer and louder a suspect proclaims innocence, the more
likely the system is to believe he or she is guilty. The justice
system has become successful in portraying every suspect person
as guilty, reversing the onus of proof from Crown to accused.
DENIAL OF JUSTICE
AT WORK IN MILGAARD CASE STUNNING, BUT NOT UNIQUE. DONALD MARSHALL
Jr. DAVID MILGAARD GUY PAUL MORIN: ALL SPENT MANY YEARS IN JAIL
FOR CRIMES THEY DID NOT COMMIT. ULTIMATE MISCARRIAGE
There is only one problem.
Our investigation shows Joe Warren should not have been convicted.
BY: DAN
LETT. STAFF REPORTER, TUESDAY FEBRUARY 25 1999
A unique and
tortured logic lets Saskatoon police, Saskatchewan Prosecutors
and federal justice official continue to deny that they railroaded
David Milgaard.
It is sometimes
called the non-ejaculating, co-conspirator theory. Milgaard was
convicted of the 1969 murder of Saskatoon nursing assistant Gail
Miller, who was found raped and stabbed to death. For more than
two decades, Milgaard and his family fought to prove his innocence.
He was freed in 1992 after the Supreme court of Canada concluded
there was enough new evidence to warrant another trial. Saskatchewan
decided not to hold that new trial, leaving Milgaard in legal
limbo- neither guilty nor exonerated. But in 1995, DNA tests
of semen found at the crime scene not only absolved Milgaard,
they tied another man to the crime.
Case settle?
Not so. in the Saskatchewan Justice Department and even in Ottawa's
Justice Department - which helped conduct the DNA tests - doubts
about Milgaard linger.
They are based
on the incredible theory that while Milgaard did not rape Miller,
he robbed her and murdered her after stumbling across her half
naked body in a snowbank.
SYSTEMIC
DENIAL
Hence the theory:
non - ejaculating co-conspirator. The systemic denial at work
in this case may be stunning, but un-fortunately it is not unique.
Guy Paul Morin
was also exonerated by DNA tests. However, at an Ontario government
inquiry into his case, both the lead prosecutor and one of the
investigating officers said despite DNA results, they still suspect
Morin.
Many critics
of the justice system believe this denial represents the ultimate
miscarriage of justice: the failure to admit and remedy a wrongful
conviction.
Former Justice
Gregory Evans was one of three members of the 1986 royal commission
that examined the wrongful conviction of Donald Marshall Jr.
a Nova Scotia Micmac Indian who was wrongly convicted of murder
and spent 11 years in prison.
Evans said
he was amazed that, despite abundant evidence of a miscarriage,
police Crown and politicians demonstrated a "general resistance"
to admitting a mistake.
A cloak
"Errors
are going to be made," Evans said in an interview, "And
when they're made, they should be corrected as soon as possible."
Such stubborn
denial serves as a cloak for people within the system who would
manufacture evidence, coerce testimony or otherwise manufacture
convictions.
Often called
"noble -cause corruption," It is a phenomenon where
some police and prosecutors break the law to put a criminal behind
bars.
Noble cause
corruption has been the focus of numerous scandals in the United
Kingdom and Australia. It contributed heavily to the creation
of an independent convictions review commission in the U.K. For
some, noble-cause corruption is an extension of the " thin
blue fine." culture that pervades some police forces.
That is the
belief that police are the last line between civilization and
anarchy. This mentality results in a police community that is
close to the outside world and would rather protect one of its
own than admit a mistake.
"They
take upon themselves the idea that while they may be engaging
in conduct not necessarily back by the Charter of Rights and
Freedom, it is for the good of the public nevertheless,"
said Osgoode Hall law professor Allen Grant, a former British
police superintendent and now an international consultant on
law enforcement.
With the introduction
of the Canadian Charter of Rights and Freedoms in 1982 came new
restriction s on police and prosecution methods and more rights
for the accused. Police were told that the way they obtained
evidence was as important as the evidence itself Long standing
interrogation and investigatory methods were thrown out.
But some prosecutors
and police forces have been slow to embrace the new rules. "Here
we have a situation where every body with more than 16 years
service, all of the people who hold down the heavy jobs and probably
get access to the big investigations, were trained in an entirely
different legal system," said Grant.
Most police
colleges avoid all mention of noble-cause corruption or the more
famous case of wrongful conviction.
The Royal Canadian
Mounted Police "Depot division" Regina is perhaps the
most sophisticated police college in Canada. Gone are the days
when recruits, fresh out of high school, focused more on push-ups
and firearm proficiency. Now, recruits study the law and apply
it to real-life situations.
What you will
not find in the RCMP training materials is any reference to David
Milgaard or Guy Paul Morin. You will not hear the terms "noble-cause
corruption" or "thin blue fine."
That is not
to say the police community is not zoning on the problem of wrongful
convictions. "I think we'd be foolish to say there wasn't
a problem" said RCMP assistant commissioner Rob Leatherdale.
"(But ) you can't take the human element out of are work.
Science alone will not solve these cases.
Tonita Murray,
director of the newly minted Police Future Group, an arm of the
Canadian association of chiefs of Police, said although the Morin
and Milgaard cases are not part of the police basic training,
the enforcement community is acknowledging the need to change
basic methodology.
The police
Future Group has been quietly working on the police code of conduct,
a tool that just a few years ago would have been considered heresy
in police circles. The code would help identify some of the systemic
causes of wrongful convictions and give police guide line on
how to avoid such problems, she said.
"The CACP
is really getting on the whole track of reform and promoting
improvement in police practices," said Murray. "The
police and senior executives in the police community are concerned
about those cases."
Police reform
would solve only part of the problem. Prosecutors still rely
heavily on tactics and evidence they now is unreliable.
ONE-WOMAN
BATTLE
Elizabeth Loftus
has waged a one-woman battle to get the justice system in the
United States to change its methods. A professor of psychology
at the University of Washington, Loftus is considered one of
the world's foremost experts on eyewitness testimony. In 18 books
and more than 300 scientific articles, Loftus has detailed the
frailties of eyewitness testimony.
Loftus said
eyewitnesses- even victims- can easily identify the wrong person
due to inherent weaknesses in a human being's powers of recall.
Her ground-breaking research shows that police and prosecutors
can influence eyewitness testimony just by the way they ask questions.
Despite uncovering
the weaknesses in eyewitness testimony, prosecutors have continued
to introduce such evidence without scrutinizing it properly.
"We believe that faulty eye witness testimony is the leading
cause of wrongful convictions," Loftus said. "And despite
my work, it still happens and it's still going to happen."
Similar frustration
is expressed about the continued use of jail house or police
informants.
LAST DECEMBER,
the Ontario Court of Appeal head from jailhouse informant who
admitted to helping police frame suspects in exchange for money
and privileges. Identified only as Jake, he detailed how he would
contact police three or four times a week with evidence- some
genuine, some fabricated- for payments of between $300 and $400.
The Justice
Fred Kaufman inquiry report on the Guy Paid Morin called for
immediate limits on the used of informant testimony. Ontario
responded with a number of reforms, including a Crown informant
review committee that approves the use of any informant.
Despite the
publicity the misuse of informants, Ontario prosecutors seemed
slow to mend their ways. Of the first seven cases the Ontario
review committees, studied, the use of an informant was denied
in five.
John McMahon,
senior Crown who heads Ontario's Kaufman Response Review Team,
said progress is being made. "There is going to be greater
objective review of cases and evidence that we found in the past
led to miscarriage of justice."
What may be
more difficult to control, however, are instances where prosecutors
and police have manipulated or concealed evidence that could
uncover a miscarriage.
Last month,
a Chicago Tribune investigation of several thousand homicide
cases showed hundreds of examples of prosecutors biding or disposing
of evidence that would have scuttled a murder charge The investigation
also found that since the early 1960s, when the U. S. government
introduced a law to curb prosecutorial misconduct, nearly 400
murder charges across the U.S. had been thrown out of court because
prosecutors concealed evidence or introduced fabricated evidence.
GREATEST
FEAR
"You will
hear many prosecutors say their greatest fear is that they don't
want to prosecute an innocent man," said Toronto lawyer
James Lockyer, one of the top guns working for Canada's Association
in Defence of the Wrongly Convicted. "What they mean to
say is they don't want to be shown to have prosecuted an innocent
man."
Systemic denial
shows in the dismal efforts of various jurisdictions to review
cases of wrongful conviction.
In Canada,
under Sec 690 of the Criminal Code, the minister of justice has
the power to quash a conviction or refer a case to an appeal
court if new evidence casts doubt on the original conviction
. It is deigned to be the appeal last resort. Investigations
are conducted by the Criminal Convictions Review Group. ( CCRG
), a branch of the federal Justice Department. However, despite
growing evidence that wrongful conviction are not rare, Ottawa
has been stingy in reopening cases. A study by Simon Fraser University
professor Joan Brochman discovered that, from 1898 to 1953, ministers
ordered new trials in only 17 cases.
Between 1960
and 1987, various minister of justice intervened in 15 cases,
but ordered new trials in only three, the study noted. The Canadian
system, critics charged, is biased against anyone claiming innocence.
Until recently, when senior CCRG staff were reassigned, appeals
were exclusively reviewed by lawyers trained as prosecutors who
critics believed, were schooled in the art of denial.
Yvan Roy, senior
counsel for the federal Justice Department and head of the CCRG,
said steps have been taken to ensure the process is seen to be
independent. And, Roy added, more lawyers with training as defence
attorneys have been recruited.
Roy said it
is unfair to suggest the department is or ever was biased against
applicants. "to be told that we are a bunch of former prosecutors..
In the business of denying people the remedy they are due is
simply outrageous. We are not in the business of denying applications.
And we have never been about that."
It may be unfair
to condemn bureaucrats for inaction when it is the political
masters who have the most to fear when opening this can of worms.
In 1991, then-
Federal Justice Minister Kim Campbell and her provincial counterparts
gathered in Yellowknife for their annual meeting to consider,
among other things, the case of Donald Marshall Jr. A 1986 Royal
Commission in Nova Scotia found serious systemic flaws contributed
to Marshall's wrongful conviction and recommended the creation
of an independent agency to handle claims of innocence.
The minister,
however, quietly decided to maintain the status quo. The principal
reason? Cost.
"General
concern was expressed that... the establishment of a mechanism
would result in a great number of requests for reviews of conviction,
"a confidential task force report stated." Giving the
financial constraints under which every government is laboring,
concern was expressed that it would be very difficult to justify
the creation of another bureaucratic level to deal with the request
for a review likely to arise from persons claiming to be wrongfully
convicted."
It is all these
reasons that advocate for the wrongly convicted seek nothing
less than radical reform and are looking to the U.K. Criminal
Cases Review Commission ( CCRC ) AS A MODEL. In just over a year
of operation, the CCRC has toppled a number of preconceptions
about the rarity of wrongly convictions.
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