The Problem of Tunnel Vision in Criminal Justice

Posted on the Innocence Project Blogsite By: Keith Findley, Co-Director of the Wisconsin Innocence Project

The 160-plus post-conviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. One commonality in almost all of the cases, however, is that they feature some form of tunnel vision.

Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. Tunnel vision is the process that leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular outcome, and then to filter all evidence in a case through the lens provided by that outcome. Through that filter, all information that supports the adopted outcome is elevated in significance, viewed as consistent with the other evidence, and deemed relevant and probative, while evidence inconsistent with the chosen theory is easily overlooked or dismissed as irrelevant, incredible, or unreliable.

Tunnel vision both affects, and is affected by, other flawed procedures in the criminal justice system. Mistaken eyewitness identifications, for example—the most frequent single cause of wrongful convictions— can convince investigators early in a case that a particular individual is the perpetrator. Police and prosecutors, convinced of guilt, might recruit or encourage testimony from unreliable jailhouse snitches, who fabricate stories that the defendant confessed to them, in hopes that they will benefit in their own cases from cooperation with authorities. Or forensic scientists, aware of the desired result of their analyses, might be influenced—even unwittingly—to interpret ambiguous data to support the police theory, or worse, fabricate results. All of these additional pieces of evidence then enter a feedback loop, bolstering the witnesses’ confidence in the reliability and accuracy of their incriminating testimony, and in turn reinforcing the original assessment of guilt held by police, and ultimately prosecutors and courts.

Tunnel vision typically begins in the initial stages of criminal cases—during the police investigation. But tunnel vision is in fact more pervasive than that; it infects all phases of criminal proceedings, beginning with the investigation of cases, but then proceeding also through the prosecution, trial or plea-bargaining, appeal, and post-conviction stages.

Tunnel vision is a well-recognized phenomenon in the criminal justice system. Most of the official inquiries into specific wrongful convictions have noted the role that tunnel vision played in those individual cases of injustice. For example, former Illinois Governor George Ryan’s Commission on Capital Punishment, the Innocence Commission for Virginia, and official Canadian governmental inquiries, among others, have all identified tunnel vision as a significant problem in the cases in which an innocent person was wrongly convicted.

In some ways the criminal justice system demands or teaches tunnel vision overtly. For example, police are widely taught that, once they believe a suspect is guilty, they should interrogate the suspect by shutting down all denials of guilt and employing psychological tactics designed to achieve a single goal: a confession. And court rules make it difficult to present evidence of alternative, third-party suspects, or to introduce new evidence of innocence once a conviction has been obtained. Each of these processes can contribute to injustices when they contribute to focusing on an innocent person and unwillingness to consider the guilt of the true perpetrator.

Wrongful Convictions in Plea Bargaining

  • Anthony Conference
    Author: Kristin Smyth, Law Student, Osgoode Hall

    In 1989, Anthony Hanemaayer plead guilty to a sexual assault Paul Bernardo later confessed to. With AIDWYC’s help, Hanemaayer was exonerated in 2008.

    It is becoming increasingly apparent in Canadian society that the justice system is not perfect and that innocent people can and are convicted of crimes that they did not commit. The wrongful convictions of individuals like Guy Paul Morin and David Milgaard have received considerable attention in the media and legal community. The concept of innocent people who plead guilty during “plea bargaining” is receiving more attention amongst legal commentators and laymen alike. Much of the concern stems from the contested role that a “bargain” should play in a judicial system dedicated to due process. It has been argued that the use of the word bargain implies that the justice system is a commodity that can be bought by those who understand how to work the system.[1] Canadian citizens have a right to the presumption of innocence and a right to a fair trial. “Backroom negotiations” with prosecutors call into question the fairness of the system.

    Why would an innocent person plead guilty?

    The question you have probably been asking is why would anyone in their right mind plead guilty to a crime that they did not commit? While it may be difficult to imagine, there are many reasons. First, going to trial is scary. For an accused, going to trial means uncertainty. Their lives are in the hands of the judge, and sometimes a jury, and no one can know for sure what either will do. On the other hand, if they negotiate with a Prosecutor, it is more likely they will receive a more lenient sentence than were they to go to trial and lose. This perceived security can be enough for an innocent person to plead guilty and admit to the crime, rather than risk a trial where the outcome can be much worse. Professor Ellen S. Podgor argues that “our existing legal system places the risk of going to trial…so high, that innocence and guilt no longer become the real considerations.”[2]

    Another reason someone may plead guilty is to avoid the significant financial, psychological and opportunity costs of going to trial. Not only can the trial process be terrifying to an accused, it’s expensive and stressful. Going to trial means usually means paying a lawyer for countless hours of work for a trial which could last months or even years. Furthermore, the accused cannot typically work while a trial is ongoing, costing them even more money.

    Psychological studies have assessed the decision making process that occurs when an innocent person is accused of something that they did not do. In one such study, college students were left in a room with one other “student” to complete logic problems. One of the students was then, wrongly, accused of cheating and given the option of either accepting a plea bargain or having to appear before the Academic Review Board (where 80-90% of students were found guilty). 56.4% of the innocent participants falsely admitted guilt in order to reduce the punishment given. Admittedly, the situation just described cannot capture the pressure and gravity of the choices that an innocent accused must make when standing before the criminal justice system. Nevertheless, the anxiety experienced while anticipating punishment is similar and the study can offer important preliminary insights.

     Why is the problem largely unrecognized?

    In 1973, the Ontario Law Reform Commission described plea bargaining as “an unhealthy philosophy quite alien to our concept of an open, fair and public administration of justice.”[3]Despite Canada’s historical unease with how plea bargaining interacts with judicial fairness, we have scant answers to our many questions concerning wrongful convictions in plea bargaining. Why don’t we know how many people plead guilty to crimes that they did not commit? The simple is because we rarely hear of the cases again. They don’t appeal. They don’t cause a fuss. Nobody asks questions. Wrongful convictions often only come to light as a result of the significant effort and resources expended by individuals in a search to uncover the truth.[4] It is often only the most serious of cases that benefit from those efforts and resources because the pay-off from success is greatest.[5] It is possible that many of the cases which involve innocent people who plead guilty were lesser offences and the convicted either did not have, or felt that it was not worth, the resources that would have been required to discover the truth. Based on these factors, it is likely that any study which looks at the problem of plea bargaining and false self-condemnation will significantly underestimate the true extent of the issue.[6]

    What is to be done?

    If Canada did not allow plea bargains, the justice system would come to a near standstill. Following the Supreme Court of Canada’s decision in R v Askov,[7] approximately 50,000 cases, in Ontario alone, had to be dismissed due to unreasonable delay. In response, the Martin Committee was assembled to review and make suggestions regarding pre-trial procedures in the criminal courts. The Martin Committee gave plea bargaining their stamp of approval to increase expediency. Today, a much higher proportion of convictions result from guilty pleas than from trials.[8]

    With the awareness that plea bargaining is not leaving the system anytime soon, how do we ensure that wrongful convictions do not occur? According to Judge H. Lee Sarokin, the only solution is “vigilance by all those involved.”[9] It is unclear whether this is the only solution. This is a question that needs to be asked by the legal community and more thorough research and discussion must occur if we ever hope to reach an acceptable answer.


    [1] G. A. Ferguson and D.W. Roberts, “Plea Bargaining Directions for Canadian Reform” (1974), 52 Can Bar Rev 497 at 550.

    [2] Ellen S. Podgor, “White Collar Innocence: Irrelevant in the High Stakes Risk Game” (2010) 85 Chicago-Kent L Rev 77 at 77.

    [3] The Law Reform Commission of Ontario, Report on Administration of Ontario Courts, Part II(Toronto: Department of Justice, 1973) at 119.

    [4] Ibid  at 4

    [5] Samuel Gross et al, “Exonerations in The United States 1989 Through 2003″ (2005) 95 J Crim L & Criminology 523.

    [6] Lucian E Dervan & Vanessa A. Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem” (2013) 103 J Crim L & Criminology 1.

    [7] R v Askov, [1990] 2 SCR 1199.

    [8] Christopher Sherrin, “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev Legal Soc Issues 1 at 2.

    [9] Judge H. Lee Sarokin, “Why do Innocent People Plead Guilty?” The Huffington Post (29 May 2012), online: Huffington Post <http://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239.html>.

    Conviction: The AIDWYC Blog is written by volunteer authors. The opinions expressed herein do not necessarily represent AIDWYC’s position or policies.

Innocence on Trial: The Framing of Ivan Henry – Book Coming Soon

I’m very excited to announce that my book, Innocence on Trial: The Framing of Ivan Henry, will be published by Heritage House in September 2014.

This book is about the trial and conviction of an innocent man. Ivan Henry was wrongfully convicted of of 10 sex crimes in 1984, and spent 27 years in prison. Throughout that time, he has fought relentlessly to prove his innocence.

I first learned of Ivan Henry when he appeared on TV the day he was acquitted by the BC Court of Appeal, in October 2010. For the past 3 years, I have taken up his cause to prove his innocence. This book makes the case for Ivan’s innocence, which is the duty of society to protect. In understanding how Ivan’s case went so wrong, we can ensure that miscarriages of this kind do not reoccur.

Equally exciting news: CTV’s W5 Investigative Journalism show will be featuring my book on September 20th or 27th, 2014.

Lineup photos

If you’re interested in learning more about Ivan’s case prior to the book’s release, I urge you to read these articles:

If you would like to meet with me, I will be at the Innocence Network Conference on April 11 -12, 2014, in Portland, Oregon.

“Ivan Henry and the Lineup Photo”: THE VERDICT; Issue 138; Fall 2013

Page 1Vancouver’s Ivan Henry spent almost three decades in jail for ten sex crimes he did not commit. But for his stubborn – call it obsessive – insistence that the lineup photo had been doctored by the Vancouver Police Department, he would not have fired his then Legal Aid lawyer Richard Peck (now, Peck QC, one of Canada’s preeminent criminal lawyers) just before the trial and opted to represent himself.

Whether one views Henry as Everyman caught up in a nightmare not of his own making; a “mentally disordered offender” (despite its inherent vagueness, the term has a certain currency); or, as the defendants in his civil lawsuit contend, the author of his own misfortune, he was most certainly not afforded the right to a fair and relevant judicial process.

After dropping out of school in Regina in Grade 9, and fleeing a series of abusive homes at age 15, Ivan Henry led a shiftless life of petty crime. Besides convictions for break-and- enter and theft, his record includes a three-year prison term for stealing a colour television and a five-year term for attempted rape. In 1980, out on mandatory supervision, he ended up in Vancouver with a drug-addicted wife and two young daughters. To support them, he worked construction jobs and sold designer jean knock-offs from the trunk of his car.

In early 1982, Canadians were appalled that the RCMP had cut a deal with Clifford Olson, a child molester and serial killer. The police having released him from jail four times while the VPD and the RCMP argued over “jurisdiction,” the govern- ment, desperate to close the case, caved in to his “bodies-for- cash” offer. “Eleven bodies for $100,000.” he said, posing for the cameras, “Consider the first one a freebie.”

At the same time, a serial rapist was at work in Vancouver. Dozens of women were being victimized and police were making no progress identifying the perpetrator. They needed a public-relations win. Thirty-five year old Henry, already on the law-enforcement radar, was a perfect scapegoat. Detained in May 1982 for a supposed break-and-enter, he soon found himself facing 17 sexual assault charges.
By November, the preliminary hearing was underway. Though Michael Luchenko, reputedly a prosecutor of the gunslinger ilk, initially fudged the question of whether a lineup photo even existed, he finally produced it. Rather than “build a record” of tainted identification – eleven of the original group of complainants had been exposed to it – John White, Henry’s then Legal Aid lawyer simply marked it as an exhibit and moved on to another line of questioning. Meanwhile, Henry, who’d caught only a glimpse of it, was a volcano ready to blow: As ludicrous as the photo was on its face – his head in a chokehold surrounded by laughing plainclothes police officers, the truly sinister part was that he’d refused to go into the lineup, and he’d absolutely not been handcuffed.

He reached the only conclusion he could: Not only was the photo someone’s idea of a sick joke; it was fake.

Convinced that White was part of the conspiracy to frame him – Why else didn’t he raise Cain not just about the lineup photo, but also a photo in which he’s supposedly standing in front of a jail cell with a police elbow stuck in his face? – Henry fired him directly after the preliminary hearing judge, Judge Wallace Craig, committed him to trial on all counts.

When the preliminary hearing transcripts arrived in Henry’s Oakalla jail cell several weeks later, the (5 X 7) lineup photo slipped out of the package and fell to the floor. No covering letter; not a word of explanation….

Finally, a chance to examine it up-close. Nothing about it was real – not the weird, vest-like thing on the mannequin; not the dummy handcuffs; not the floating head positioned askew from the torso.

When Richard Peck showed up at Oakalla, a Legal Aid employee in tow, Henry sought to elicit a promise: “I demand that you prove,” he said, “starting with the sham photo, that forces unknown are conspiring to frame me….”

After saying nothing for the longest time, Peck, steepling his forefingers, looked down at the ground. “To win, Mr. Henry,” he said, delivering each word slowly, deliberately, “it is not necessary to prove conspiracy. I’m here to discuss realistic strategies regarding how best to achieve an acquittal.”

At which point Henry asked the guard to return him to his cell.

Representing himself, Henry asked each of the seven trial complainants (the preliminary hearing evidence of the eighth, an American, was read into the record) the following question: “I suggest you were never raped, you’re making the whole thing up.” One can only imagine the victim’s reaction, let alone that of Mr. Justice John Bouck, the trial judge. Indeed, the transcript is studded with instances wherein the judge’s contempt for the accused is apparent.

From the outset, it was clear that Henry required assistance in mounting an effective defence. For example, when the judge castigated him for insisting that one of the women produce her social insurance number so as to prove her identity, the accused asked her, “Are you really saying that, when the guy poked his pecker through the hole in the sheet, you didn’t know the mean- ing of ‘giving head’?”
When she said, “yes,” he said, “Well, if John the Baptist were here, he’d probably give you his head.” When he asked how she could be certain that the man left through the backyard rather than the front-yard, she said she’d have noticed someone passing by her window, situated as it was little more than eight inches above the ground.

MR. HENRY: Oh, I see, it’s the cat we’re dealing with now.
A: No, we’re dealing with the man.
Q: So your fish died, poor thing. Did you give it to the cat?
THE COURT: You’d better get on to something
that is relevant.

Yet, through that entire two-week trial, the judge failed to so much as mention the appointment of an amicus curiae – a lawyer appointed by the court to ensure that a party’s legal rights and interests are adequately protected.1

Judge Bouck made, as found by the 2010 Court of Appeal,2 several errors in law – errors surprising, to say the least, for a jurist with his reputation – a man reputed to be an expert in criminal law. To name just a few, he failed to sever the counts at the outset; his charge to the jury regarding identification evidence was fatally flawed; and he erred in instructing the jury that failure to participate in a lineup is evidence of guilt. Such was the judge’s attitude that, more than once, he teetered on the brink of saying that it was Henry who bore the onus of proof; more than once in his charge he conflated the words “the attacker” with “the accused.”

Not that any of this registered on Henry. His fixation remained constant: If only he could prove the photo to be counterfeit, the corruption of the state would be revealed; the conspiracy against him exposed.

To that end, when his old pal, Colin Bradbury, took the stand, he sprung on him a volley of unrehearsed questions. Initially called to give alibi evidence – at least three of the victims had been assaulted in Mount Pleasant when Henry was helping him build his home, several miles away, in West Vancouver – Bradbury would have had no idea what was coming…. Not, that is to say, unless he’d already discussed the lineup photo with Luchenko. Given that the Crown had undertaken to subpoena Henry’s witnesses on his behalf, Luchenko may well have had a word with him before he testified.

“I want nothing to do with that trial, Henry,” he’d said, when Henry finally got ahold of him. “You say you’re innocent, but I’ve got my children to protect.”
“Come on Colin, just talk about the weeks I stayed overnight with you at the house. It’s important. That’s when they say some of the rapes went down. In Mount Pleasant – miles away. During a bus-strike. My car was busted, out of commission. You must remember….”

“Don’t make me get involved….”

When Henry finished up with his “alibi” questions, he asked Madam Court Clerk to hand Bradbury Exhibit One; instructed him to hold it close to the light. Confident that a man who got paid for taking wedding pictures would know fake from real, he asked him whether it was phony.

“I wouldn’t think for a minute it’s been doctored.”

Reeling; unable to collect his thoughts, Henry proceeded to veer from question to question like a drunk trying to walk a straight line.

MR. HENRY: So there’s no way I could cut the negative out and put a head in there, and do it that way?

A: That hasn’t been done….

Q: What about that little chest protector thing he’s wearing? You know, like the kind umpires wear so that don’t get hit with a baseball?

Holding it up to the light, Bradbury shook his head. “I know what it is.”

(Never once did it occur to Henry that the photo in Bradbury’s hands was different from the one in his. More than that, it never occurred to him that everyone in the courtroom, save for him, was in possession of that very same 8 X 10.)

Lineup photos

….

In charging the jury, Judge Bouck said that Henry’s own “expert” – Bradbury was far from being an expert in photography, let alone forensic photography – had put the lie to his tampering claim.

As the trial stumbled to its end, Henry, worried that he’d made a mess of things, begged the trial judge for the appointment of counsel:

MR. HENRY: I think I should, Your Honour, for my own sake…. I said to myself downstairs that I’m really into this over my head. I’d rather make my own submission to the jury than have someone else control my life but, when it comes to dealing with the law, about different identifications and whatever, in that respect I should have someone speak for me.” THE COURT: You should have thought about that before. I gave you ample chance to get a lawyer. You had a lawyer, and you fired him.
MR. HENRY: Well –
THE COURT: I said you should have a lawyer. You turned it down. You elected to represent yourself. You take your chances.
MR. HENRY: What I need right now is a little guy over there, sort of a friend – researching new caselaw, getting my ideas across.
THE COURT: A lawyer isn’t going to be able to do anything for you. He wasn’t here during the evidence. He has no idea what the case is about, no transcript of the proceedings. These are all the chances you took when you decided to defend yourself.
MR. HENRY: Yes, but –
THE COURT: And that’s a difficult decision you’ve put yourself in, nobody else. Now we’ve given you a copy of Martin’s Criminal Code. Were we to turn you loose in the library, you’d have no idea what to do. Perhaps the Crown can help – there’s an article by Salhany in Canadian Criminal Procedure on “Identification”. You might photocopy that for him if you would.
MR. LUCHENKO: Yes, My Lord.
MR. HENRY: I’ve dug up other stuff for the past eight months. I’ll use that too.
THE COURT: Oh, you won’t be arguing law to the jury.

Just weeks before Henry’s dangerous offender hearing, Legal Aid sent another lawyer his way; a man young enough to be his son. “If you can find your way to pleading guilty to one count only,” the pink-cheeked man said, “we might be able to assist you with your appeal.” Resisting the urge to box him behind his ears, Henry showed him the door.

On November 22, 1983, Judge Bouck, the very picture of high-brow decorum, sentenced Henry to jail indefinitely, meaning that he had a zilch-to-zero chance of ever being paroled. In his reasons, he said:

The jury had no difficulty convicting him, partly because he unknowingly put into evidence testimony and exhibits that tended to prove his guilt.

Six of the eight complainants testified in these proceedings about how the attacks affected their lives. It is devastating enough to be assaulted, but it must be equally repulsive for them to endure cross- examination, at trial and on this application, by the very person who committed these deplorable acts. They are to be commended for seeing this matter through to the bitter end….

Society must be permanently protected from this man’s predatory behaviour. There are no redeeming features to rule otherwise. I therefore sentence him to detention in a penitentiary for an indeterminate period. …

When Henry couldn’t pay the $4000 fee quoted by Court Services for the Appeal Books, the Crown brought on a “want of prosecution” motion. Incredibly, appellate Justices Seaton, Anderson and Carrothers acceded thereto in February 1984:

“No appeal books have been filed or ordered. Mr. Henry says if we want to get them he will write some notes in them for us, but that he will not get them, that they are, I think his word was, “garbage,” and he would throw them away. He refused legal aid at his trial and he either does not want legal aid now, or he cannot get legal aid now, maybe both. He has expressed an intention not to proceed with these appeals in accordance with the only way in which they can be dealt with.
Under those circumstances, I would grant the mo- tions quashing the appeals for want of prosecution.”

Though Henry’s use of the term “garbage” doubtless offended their Lordships, his claim was not without substance: The transcripts he had received – the complainants’ evidence, in preparation for the dangerous offender hearing – were shoddy in the extreme.

As well, the then Criminal Appeal Rules provided that, where an appeal is not “diligently pursued,” the respondent “may apply to the court for an order dismissing the appeal for want of prosecution,” and the Court may make such order as it “deems just” (Section 9 (1)). How could it be said that the failure of an incarcerated, indigent man to come up with $4000 amounted to him not “diligently (pursuing)” his appeal – all of that within three months of his being sentenced?

And, finally, no mention was made of Henry’s lengthy, remark- ably cogent, appeal submission; nary a thought given to asking Legal Aid to cover the cost of the Appeal Books.

Many years later, Justice Barbara Reed of the Saskatchewan Queen’s Bench dismissed Henry’s latest in an endless line of court applications. Towards the end of her lengthy judgment, she said, “Your own expert said the photo was legitimate. You say the photo’s been doctored, but where’s the proof?”

Her words struck a chord. Rising to the challenge, Henry began scouring the pages of the Prince Albert Yellow Pages.

Weeks later, after multiple security checks and reams of red-tape, Mr. Lee Atkinson, a photographer who’d spent a decade retrieving and analyzing remote satellite images for the Federal Government, attended at the Saskatchewan Penitentiary. Twenty years later, Atkinson described that visit as follows:

“The warden called me, said I was to bring with me lighting and other paraphernalia – tripod, camera, flash units. Other than that, I was told very little. I met up with everyone near the Infirmary. When I saw the photo, it seemed surreal. That, and not knowing what was going on, why I was there.

“I took pictures with a Hasselblad camera, 70 mm film. There wasn’t much discussion with either the guards or with Henry. I understood that one of the guards had offered to analyze the photo, but Henry had said no.

“At some later point, he wanted an affidavit. I was objective, I knew very little. I thought the photo was odd. Initially, I looked at it like it was a story, a puzzle.
Among the things that don’t make sense are the shield, the wrists of the guy at the end. There’s a centre of light, yet the shadows on the numbers are all wrong. I didn’t know light sources or trajectory of light. I had no idea why he was incarcerated, or what he wanted to do with my affidavit.

“I wondered whether images had been combined through physical cutting and pasting. Another possibility was the creation of false imagery–e.g., three different negatives of the same image, taken at different wavelengths. Expose them through 3 colours – false colour.

“There’s a yellow area – the straight line has yellow side alongside it. If the arm is “blooming” – washed out – why not the number? The white placard should wash out before the arm. In the printing industry, they use ruby lithographs to, for example, hide an area, then add new elements over the top. It’s part of the mechanical process.

“For a couple of years after that, Henry called or wrote me, told me what sizes he needed. I charged him what he could afford, and I took his collect calls.”


In 1995, Henry finally landed a lawyer, Peter Ryan, prepared to take on his cause. In a letter to Legal Aid, Ryan wrote:

“Please find attached the Affidavit containing the expert analysis of the lineup photo…. The highly qualified expert, Mr. Lee Atkinson,
makes observations in his Affidavit that lead to the conclusion that the photograph was altered, fabri- cated or doctored.

“As this was strictly an identification case, and given the strong character of the Affidavit evidence, the applicant very likely would be successful in the BC Court of Appeal using the Palmer test for fresh evidence.”

In summary, Ryan was prepared to argue first, that the photo was fake and, secondly, that the many police officers who had attested to its accuracy had perjured themselves.

(My efforts to track down Ryan have, to date, proved futile. The last I heard, from his mother in England, is that he is “somewhere on the high seas, unreachable.” When she said that she hadn’t heard from her son in months,” I asked her to pass on a message. Considering the (unrelated) personal difficulties facing him should his whereabouts become known, I am not sanguine about my chances of interviewing him.)

When Legal Aid refused funding for Henry’s appeal, he did the appeal himself. In a judgment rendered in December 1997, appellate Justices Finch, Donald and Hall, describing the issue before them as one of “fact, not law,” said that Henry should have raised it at trial:

“(T)he issue which he seeks to address is an allegation of perjury on the part of a number of police officers in connection with lineup photographs which were used at trial.”

Had Henry been represented by counsel, the Court may have had a point. However, not only did the Court pay no heed to the salient fact that he represented himself; it ignored the question of why, if the state had a valid case against him, would they resort to dummying up a lineup photo.

For years after that, Henry filed countless more applications protesting his innocence; applications now featuring, front and centre, enlarged copies of the lineup photo – 20” X 28”s mounted on cardboard – together with the Atkinson affidavit.
For every copy sent out, the same pro forma answer, smack- ing of institutional indifference, came back: “We’ve heard it all before. Thanks but no thanks.”

The chain of circumstances that resulted in the reopening of Henry’s appeal began with the investigation regarding Robert Pickton, pig farmer and now-notorious serial killer.
After years of investigating unsolved rape and murder cases with little success – in 2005, a Donald James McRae pleaded guilty to three counts of rapes, the only three wherein DNA matches had been made – the VPD alerted Administrative Prosecutor Jean Connor (now, QC) to its findings. Of the roughly fifty, post-Henry-incarceration, rapes under investiga- tion, a minimum of twenty-five (including the three “McRae crimes”) involved an MO virtually identical to that found in the “Henry crimes.”
As Vancouver Sun reporter Neal Hall wrote in January 2009, soon after the Court of Appeal’s decision to reopen the Henry appeal:

“The horrendous injustice suffered by Ivan Henry might never have come to light if not for the in- vestigation into the heinous crimes of serial killer Robert Pickton.
The BC Court of Appeal buried Henry more than a decade ago [sic] – and Tuesday’s extraordinary historic reversal by the province’s high bench would not have occurred without a Vancouver Police Department review of old sex cases spurred by the Pig Farm murders.

“A subsequent investigation, dubbed Project Smallman, led directly to the 2006 appointment of special prosecutor Len Doust over fears a miscarriage of justice might have occurred. His report last year on Henry’s case was the catalyst for this week’s unprecedented order it be reopened….”

Quoting Connor, Hall said that the pieces fell into place for her in 2006, while reading a memo about McRae:

“Nothing the similarities between those crimes and the ones two decades earlier, she walked down the hall and read out the details to colleague Mike Luchenko. When she asked, ‘Who’s that?’ he said, ‘Ivan Henry….’
Once Wally Oppal, the then Attorney-General, had been alerted to this potential miscarriage of justice, he appointed Special Prosecutor Leonard Doust QC to review the case.

‘It was just a total coincidence that I read the new file and recalled the Henry case, because I was here when that was prosecuted,’ said Connor, a prosecutor for 33 years who plans to retire in July….

“Connor pointed out that Henry’s name was not in the other suspect’s file, or vice versa.”

At the reopening hearing, much of the evidence and argument
was advanced by way of joint submission. Given that Henry’s lawyers did not allege that the lineup photo had been fabricated, that issue was not before the Court of Appeal and played no part in the acquittal decision.

Though Henry pressed the Special Prosecutor to at least consider the issue, Mr. Doust made no mention of it in his Report. When I asked him about this, he emailed me back as follows:

“I was provided with a copy of the photograph almost at the outset of the matter by way of the Crown (Luchenko) file. Henry himself (not the Crown) put the photograph into evidence at his trial despite a very strong caution with respect to potential harm to his case by doing so from the trial judge.

“I cannot confirm or deny whether Henry actually provided me with a copy of the photograph but, indeed, he did provide approximately 2 boxes of documents, all of which have long since been delivered, at their request, to the Crown. As to the authenticity of the photograph, any consideration of that issue in the report would of course be privileged.

“I did not consider it necessary to interview Henry for any purpose and was well aware that he had legal counsel and if they felt it necessary for me to interview him they could have so advised and I would have done so.”

[Regarding paragraph two, there is nothing in the transcript to indicate that the trial judge cautioned Henry against introduc- ing the photo. Secondly, the (2010) Court of Appeal said that, notwithstanding the trial judge’s view that Henry was to blame for putting it into evidence, the photo was key in showing that the pre-trial identification process was flawed and seriously called into question the reliability of all other identification evidence. Instead of giving Henry’s point the consideration it was due, the trial judge appeared to treat it quizzically.]

As happy as Henry is to have regained his freedom, it rankles him not to have been declared “innocent.” As hopeful as he is that, eventually, he will receive just and reasonable compensation, he remains concerned that the lawyers in his civil suit have declined to include the “fake photo” allegation.

“If ever a case for malicious prosecution has been made out,” he says, “that photo’s got to be it.”

The Ivan Henry case is by no means over. Whether inspired or simply dogged, Henry is not about to give up. For three decades, he kept the dog-eared lineup photo close at hand. Cutting out part of a Michigan State law book when sent to serve a four- month stint in segregation in 1990, he stashed the lineup photo in it.

“That was the hardest part of all,” he told me, “not knowing whether it would go missing.”

Though working with Ivan has its challenges – the man’s trust quotient is understandably low – I remain committed to peeling away the layers of truths and untruths underlying his wrongful conviction.

For thirty years, Henry’s argument regarding the lineup photo’s authenticity or otherwise fell on deaf ears. It is my hope that this article will, in its own small way, cause people in positions of authority to take, at long last, a second look.

1 “Self-Represented Accused: A Judge’s Duty of Fairness;” Joan McEwen; The Advocate; July 2012 Vol. 70, 537.
2 R. v. Henry [2010] BCCA 462.

Catch-22: Parole Remote for Inmates Proclaiming Innocence

Sam Eilfing’s article in today’s Tyee online news magazine is well worth the read: http://thetyee.ca/News/2013/10/23/The-Innocence-Trap/

In it, he discusses the catch-22 facing all innocent prisoners: If you refuse to acknowledge guilt, the parole board will say you haven’t taken the first step to rehabilitation. Hence, you remain a danger to society, etc etc.

Sadly, that’s only one of the ways innocent “offenders” are disadvantaged over those who are guilty. Another is that, when released, as was wrongly convicted Ivan Henry (@iwmh_Ivan) in 2009, they are simply kicked out onto the street–without, for instance, any of the benefits the guilty receive, such as a community of people afforded by halfway-houses, room and board, financial and employment assistance, etc.

Ivan Henry and Me. The Wrongful Conviction of an Innocent Man

Acclaimed writer Gary Ross has written a wonderful article about Ivan and me: WRONGED!

In it, Gary deftly underscores the indefatigable perseverance of Ivan Henry–four years out of jail (after 27) and still penniless. Bloodied but unbowed.

Could not the defendants, who continue to argue that he is the author of his own misfortune, advance him at least a pittance of money pending the outcome of litigation?

My book, to be published in September 2014, will prove his innocence.

Rape Victims and Post Traumatic Growth

All my life, I’ve been interested in why some people recover from trauma while others remain forever traumatized–stuck inside that one horrible event that forever after defines their life. My father, paralyzed from the waist down from polio in 1954, moved on to greater and better things. A sheetmetal mechanic by day, he applied the electronics courses he’d taken while in rehab to a night job fixing neighbour’s TV sets out of our garage. Such was his passion, and his interest in sharing it with others, my brother recently received the Order of Canada for his ground-breaking work in biomedical engineering.

It was while writing my book about Ivan Henry–convicted of ten sexual assaults in 1983; acquitted in 2010, after 27 years in jail–that my interest in the subject deepened. Though Henry is almost certainly innocent of all ten crimes–the likely perpetrator, Donald James McRae, continued, after Henry’s incarceration, raping countless other women–the courts in 2010 merely pronounced him “not guilty” as opposed to “innocent.”

(In 2005, DNA having conclusively linked McRae to three rapes in the ‘80s, he pleaded guilty to (only) those and received a five-year sentence. In June 2010, he was released at the age of 58.)

In this piece, I consider the impact of rape on the following three groups of victims:

  1. The three women inextricably linked through DNA to McRae;
  2. The “Henry” complainants: (a) non-trial; and (b) trial; and
  3. Jennifer Thompson (now Thompson-Cannino), the woman whose misidentification of her attacker led to the lengthy incarceration of an innocent man, Robert Cotton.

Two questions that arise are

  • what factors bear upon one’s ability to tilt towards “post traumatic growth”; to fall up as opposed to down? How is it that some victims are defeated by trauma, whereas others–for instance, Viktor Frankl, a holocaust survivor–are able not just to overcome but, indeed, to defeat adversity; and
  • doe the alleged perpetrator’s “criminal law” outcome affect the victim’s ability to recover from the crime–e.g., does it matter whether (a) the perpetrator’s factual guilt is conclusively established (McRae); (b) he is, like Henry, merely acquitted, not declared innocent; or (c) his factual innocence is, like Robert Cotton. conclusively proven?

In his excellent book, “The Happiness Advantage” (2010; Random House), Shawn Achor explores this very subject. Achor says that, on every mental map after crisis or adversity, there are three mental paths:

  1. One that leads you toward further negative consequences;
  2. One that keeps circling around where you currently are; and
  3. The “Third Path”—one that leads us to a place where we are even stronger and more capable than before the fall. Instead of falling down, the victim actually “falls up”.

Citing psychologist Richard Tadeschi’s empirical study of “post-traumatic growth”, Achor notes that the results of that extensive research show that trauma such as military combat, refugee displacement, and physical assault can spur growth in many, many individuals.

Of course, not everyone is able to “fall up” after great suffering. What distinguishes the people who find growth versus those who do not? According to Achor, “the people who can most successfully get themselves up off the mat are those who define themselves not by what has happened to them, but by what they can make out of what happened. These are the people who actually use adversity to find the path forward. They speak not just of ‘bouncing back’, but ‘bouncing forward’.”

Is it possible for victims of rapes to move past their anger; even past the mere regaining of their equilibrium? Is it possible for them to emerge stronger, more self-actualized, than before? Secondly, is the criminal law outcome—guilty, not guilty, or innocent—relevant to that question? Where there is a real possibility, or, indeed, certainty, that a victim has misidentified her attacker, what if any role does the State play in helping or hindering her journey along that “third path”?

Beginning with the three McRae victims, in June 2005, Provincial Court Judge W. Kitchen wrote a lengthy sentencing decision after Donald James McRae pled guilty to the only three counts (among dozens of virtually identical sexual assaults, including “Henry’s”) wherein DNA testing confirmed that perpetrator spermatozoa matched his. The three assaults occurred in June/85, January/87 and March/87 respectively—roughly two decades earlier.

After noting “continuing terror and upset” on the part of each of the three victims, Judge Kitchen said, “Without wanting to dishearten the complainants, it really has fairly well destroyed their lives.” How sad, I think, that such should be so.

Turning to the “Henry” victims, is it a coincidence that the only two who agreed to be interviewed testified at Henry’s preliminary hearing, but not—because they were unable to identify their attacker—at his trial?

Though they both suffered for months thereafter—installing bars on the windows of their basement suites; afraid of being alone; experiencing prolonged bouts of depression, insomnia, etc.—each of them said that, within a relatively short period of time, she had moved on with her life. One graduated with a law degree the following year; the other participated, not long after the trial, in a “restorative justice” documentary, filmed in Seattle, USA, wherein several victims of rape and a number of (unrelated) “recovering” rapists spoke frankly—often, rawly—about their experiences.

“That exercise helped very much with the healing process.” she told me. After which she freely volunteered what a tragedy it was that, if Henry really didn’t commit the crimes, he spent twenty-seven years in jail.

Had this woman played an instrumental role in sending an innocent man to jail, would she have been so forgiving? Likely not. Perhaps only because her  conscience was clear was she able to say, “No way was I letting some pervert define my life.” Indeed, at a meeting wherein a number of victims of the “rip-off rapist” created a composite sketch of the attacker, she said, laughing to break the tension, “All I can remember is his pathetically tiny dink.”

At Henry’s sentencing hearing in November 1983, a number of trial complainants testified regarding the “severe psychological damage” he had inflicted on them. Sleeping with lights on ever since; eyeglasses, too. Nightmares. Weight loss, weight gain. Failing grades, lost semesters.… Self-blame, thoughts of suicide. Fear, fear, fear.

The following day, the trial judge ruled in part as follows:

Six of the eight complainants testified in these proceedings about how the attacks affected their lives. It is devastating enough to be assaulted, but it must be equally repulsive for them to endure cross-examination, at trial and on this application, by the very person who committed these deplorable acts. They are to be commended for seeing this matter through to the bitter end….

 

Society must be permanently protected from this man’s predatory behaviour. There are no redeeming features to rule otherwise. I therefore sentence him to detention in a penitentiary for an indeterminate period.

 

In response to letters I wrote to several of the trial complainants, two replied, angrily denouncing me and warning me not to harass or “re-victimize” them or the others. Though I made it clear that I had, as yet, no opinion regarding Henry’s guilt or innocence, they insisted that–acquittals notwithstanding–he was guilty as sin: “He got off on a technicality. Everyone knows that.”

On May 19, 2011, the B.C. Ministry of Public Safety and Solicitor General wrote me as follows:

Re: Victim Court Support Programs

 

Many of the complainants in this matter have advised that they do not want you to contact them or anyone related to them with regard to Ivan Henry or your writing project. This includes any form of contact, by way of example but not limited to mail, phone, email, in person, through another party. In case you are not aware, there is a ban on disclosure of the identity of the complainants.

 

I trust you will respect the wishes of the complainants and we ask that you make no future attempts to contact them.

Whether some others of the “Henry” complainants were willing to speak to me, I have no way of knowing. What I do know, based on the blasts levelled at me, is that, for at least two of them, the mental pain inflicted on them thirty years earlier is still very visceral and close to the surface.

In June 2000, rape victim Jennifer Thompson—her real attacker having just been arrested, years after another man. Ronald Cotton, was found guilty—wrote in a New York Times op-ed piece:

I studied every single detail on the rapist’s face. I looked at his hairline; I looked for scars, for tattoos, for anything that would help me identify him. When and if I survived the attack, I was going to make sure that he was put in prison and he was going to rot…. I knew this was the man. I was completely confident. I was sure….

 

Eyewitnesses can and do make mistakes….

 

Ronald Cotton and I are the same age, so I knew what he had missed during those 11 years. My life had gone on. I had gotten married. I had graduated from college. I worked. I was a parent.

 

Ronald Cotton hadn’t gotten to do any of that.

Many years passed before Thompson worked up the courage to go public; to expose her “crime”—that of mistaken identity—to the world. First, she had to confront the horrific ripple effects of what she had done: condemned an innocent man to jail for life. 4000 days of his precious life and counting. Had it not been for the scientific “magic” of DNA, he’d have rotted inside forever.

How did Jennifer come to forgive herself? Two years after the exoneration, she met Ronald Cotton and he forgave her. “I want you to have a good life,” he said, “we’re both victims of a flawed system.”

As Jennifer wrote in that same article,

Mr. Cotton and I have now crossed the boundaries of both the terrible way we came together and our racial difference (he is black and I am white) and have become friends. Although he is now moving on with his own life, I live with constant anguish that my profound mistake cost him so dearly. I cannot begin to imagine what would have happened had my mistaken identification occurred in a capital case.

Today, Jennifer Thompson-Cannino lives in North Carolina with her family. She speaks frequently about the need for judicial reform, and is a member of the North Carolina Actual Innocence Commission, the advisory committee for Active Voices, the Constitution Project, and Mothers for Justice. She writes and speaks regularly about the deficiencies inherent in eye-witness identification.

At the latest Innocence Network Conference in Charlotte, North Carolina, I asked Jennifer whether her message of forgiveness and redemption extends to the guilty as well as the innocent. “Absolutely,” she said. Her meeting with Cotton raised an important question in her mind: If he could forgive her, could she forgive Bobby Poole, the actual perpetrator? “Forgiveness is not about excusing the crime, it’s about power and letting go”:

I realized Bobby Poole still had a hold on me after all these years, and that the anger that lived in me had completely changed the way I looked at the world, at what was possible.

Shortly after meeting Cotton, she wrote to Poole, requesting, in the interests of restorative justice, a meeting. Poole died of cancer shortly thereafter, never having replied.

Closing Thoughts

What allows some victims to move on, and others to remain stuck in the past—in the grips of the horrible trauma they experienced? Obviously, as Shawn Achor says, positivity comes more naturally to some people than others. So many factors come to bear: family history and personal experiences; personality; social network; physiological make-up; etc.

However, Achor says that “happiness is not just a mood—it’s a work ethic”:

While we each have a happiness baseline that we fluctuate around on a daily basis, with concerted effort, we can raise that baseline permanently so that, even when we are going up and down, we are doing so at a higher level.

 

How sad that any of the trial complainants in the Ivan Henry case remain consumed, three decades later, by anger. What concerns me is whether the State–instead of focusing on paying Henry the compensation he so justly deserves–is enabling/encouraging that very mindset. By propagating the view that Henry is de facto guilty; by using that stance as a shield against his civil claim, the State is fostering a climate totally at odds with the victims’ pursuit of that Third Path.

On a related note, the Conservative government is supporting Bill C-479, a private member’s bill aimed, among other things, at giving victims better access to parole board hearings and requiring parole boards to make a greater effort to allow victims and their families to present statements during hearings or provide written or recorded submissions: http://www.theglobeandmail.com/news/politics/ottawa.

Fair enough that the victim has input at the time of sentencing, but the Conservatives should not be taking steps to enhance the victim’s role post-conviction.

The only two issues relevant to the early release of offenders—the rehabilitation (or otherwise) of the offender, and public safety—reflect, precisely, the two pillars of Corrections Services of Canada’s mandate. In other words, once an offender enters the Corrections system, his/her release plan are to be governed solely by those two considerations.

Victim Services in effect accused me of “re-victimizing” the Henry complainants. Surely, by moving to expand the role of victims at parole hearings even further than it already is, Bill C-479, if passed into law, would do precisely that.

 

Injustice, Forgiveness, and Redemption

In 1984, Jennifer Thompson was raped. She went on to testify that Ronald Cotton was the man who attacked her and as a result, he was sentenced to life in prison. After eleven years of incarceration, DNA evidence exonerated Cotton of the crime. Two years after he was released, Thompson reached out to apologize. Not only did he forgive her, but Thompson and Cotton went on to write a memoir together about their experience, Picking Cotton: Our Memoir of Injustice and Redemption

 

Victims’ Rights Bill C-478

And another thing:

Bill C-478 seeks to make “violent offenders” wait 5 years for a parole hearing, rather than the current two. The John Howard Society says such a change bodes ill for the gradual reintegration of offenders back into society. Hence, in terms of the “bottom dollar”, more $$.

Not only that, Sue O’Sullivan, the “Federal Victims’ ombudsperson”, has asked that offenders lose the ability to withdraw parole applications on short notice.

Why??

Does it not make sense for an offender, learning that his Institutional Parole officer, etc., is dead-set against him winning parole, to save everyone the effort by withdrawing his parole application when, not to do so, means another 2? 5? years more inside?

To read this proposed private member’s bill is to shake one’s head.

If only the people on the ground in Corrections Services of Canada and Canada Parole Board felt they had the freedom to weigh in…. When they signed on for their roles, did they ever imagine their decision-making would be so hamstrung?

 

 

 

 

Victims’ Rights Bill C-478

May 9, 2013 Tories Support Backbenchers’ Victims’ Rights Bill C – 479: Victims want to weigh in as to when if ever their offenders will be released.

My understanding of the criminal justice system is that, once an offender has been sentenced (the victim having had full input), the release/parole plan depends on whether or not the inmate has

1. fulfilled the minimum sentence requirement; and

2. Shown positive progress, while incarcerated, in terms of rehabilitation.

How, as a matter of criminal law policy, can the victim’s opposition to release be relevant?

Unless, of course, we wish to shuck entirely the notion of rehabilitation?

Surely, a just society has a strong interest in ensuring that inmates are rehabilitated such that, upon release, they do not reoffend.