Bill C-54: Harper strikes back at the NCR (“Not Criminally Responsible”)

In today’s Globe & Mail, Justice Reporter @kirkmakin cites critics who slam Harper’s Bill C-54, the proposed legislation aimed at impeding the release of “high-risk” mentally ill offenders:

The Canadian Psychiatric Associations warns that it would “jam hospital beds, punish people whose only crime is to be sick, and distort a carefully calibrated regime that amply protects the public.”

Wrongful Conviction: Confessions

In the area of wrongful conviction law, “confessions” are viewed through two different lenses.

For instance, a confession by the actual perpetrator can, and should, lead to a finding that the convicted prisoner is “factually innocent.” For instance, twenty years after Anthony Hanemaayer, an Ontario man, pleaded guilty to sexual assault, convicted serial rapist/killer Paul Bernardo confessed to his crime. Asked why he pleaded guilty, Hanemaayer said, “I was nineteen years old. I got a sentence of two years less a day. Otherwise, it could’ve been ten. I was scared of doing Federal time, so I took the deal.”

Then there is the matter of “false confessions”—very often the lynchpin in a finding of guilt in the case of an innocent person. In their book, Actual Innocence (2003), Barry Scheck (@barryschek), Peter Neufeld and Jim Dwyer (@jimdwyernyt) write that, of seventy-four U.S. wrongful conviction cases reconstructed by the Innocence Project in 2000, false confessions were a factor in 22 percent.

The false confession of an unsophisticated young man with a low IQ played a major role in the wrongful convictions featured in the recent, award-winning documentary, on the West Memphis 3. The movie examines the case of three young Arkansas men who were locked up for the horrific 1993 murders of three 8-year-old boys. Perhaps the most powerful piece of the prosecution’s case was a confession by one of them, describing in graphic detail how he and his two co-defendants beat, raped and mutilated the boys. The documentary, however, showed how the police, after hours of intense interrogation; heavy with leading questions, manipulated and extracted a false story from the young man.

Jurors have a difficult time believing someone would confess to a crime they did not commit.


Wrongful Conviction: Shaken Baby Syndrome

Audrey Edmunds was a happily married young mother of two with a baby on the way; the neighborhood soccer mom in a small Wisconsin town providing casual childcare when the unthinkable happened. An infant died in her care at the same time the unknown science of Shaken Baby Syndrome hit the media. Swept up in a media frenzy, Edmunds was accused of killing the child through “Shaken Baby Syndrome”.

Stripped from her children and husband, she was sent to prison where she would fight for freedom 13 years before she was finally exonerated after updated science showed her innocence. Her newly released book:

It Happened to Audrey: A Terrifying Journey From Loving Mom to Accused Baby Killer


Ivan Henry and the “Open Court Principle” II

The B.C. Supreme Court has rejected my application for access to the Report of the Special Prosecutor in the #IvanHenry case, ruling that the Report is a “privileged” communication between lawyer (Leonard Doust, Q.C.) and client (the Attorney General of British Columbia. 

My position was that, given the reliance placed on the contents of the Report by the B.C. Court of Appeal in its acquittal decision, “privilege” had been de facto waived. In the circumstances, the “open court” principle required public access to the document.

Fallibility of Eyewitness Identification

‘I Was Certain, but I Was Wrong’: Sunday, June 18, 2000; New York Times OP-ED

In 1984, I was a 22-year-old college student with a grade point average of 4.0, and I really wanted to do something with my life. One night someone broke into my apartment, put a knife to my throat and raped me. During my ordeal, some of my determination took an urgent new direction.  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.

When I went to the police department later that day, I worked on a composite sketch to the very best of my ability. I looked through hundreds of noses and eyes and eyebrows and hairlines and nostrils and lips. Several days later, looking at a series of police photos, I identified my attacker. I knew this was the man. I was completely confident. I was sure. I picked the same man in a lineup. Again, I was sure. I knew it. I had picked the right guy, and he was going to go to jail. If there was the possibility of a death sentence, I wanted him to die. I wanted to flip the switch.

In 1986, the case went to trial. I put my hand on the Bible and swore to tell the truth. Based on my testimony, Ronald Junior Cotton was handed a life sentence. Because I could begin to put it all behind me, I rejoiced.

In 1987, the case was retried because an appellate court had overturned Ronald Cotton’s conviction. During a pretrial hearing, I learned that another man had supposedly claimed to be my attacker and was bragging about it in the same prison wing where Ronald Cotton was being held. This man, Bobby Poole, was brought into court, and I was asked, “Ms. Thompson, have you ever seen this man?” I answered: “I have never seen him in my life. I have no idea who  he is.” Ronald Cotton was never going to see light; he was never going to get out; he was never going to hurt another woman; he was never going to rape another woman.

In 1995, 11 years after I had first identified Ronald Cotton, I was asked to provide a blood sample so that DNA tests could be run on evidence from the rape. I agreed because I knew that Ronald Cotton had raped me and DNA was  only going to confirm that. The test would allow me to move on once and for all.

I will never forget the day I learned about the DNA results. I was standing in my kitchen when the detective and the district attorney visited. They were good and decent people who were trying to do their jobs—as I had done mine, as anyone would try to do the right thing. They told me: “Ronald Cotton didn’t rape you. It was Bobby Poole.” The man I was so sure I had never seen in my life was the man who was inches from my throat, who raped me, who hurt me, who took my spirit away, who robbed me of my soul. And the man I had identified so emphatically on so many occasions was absolutely innocent.

Ronald Cotton was released from prison after serving 11 years. Bobby Poole pleaded guilty to raping me. 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.

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 there is a man in Texas named Gary Graham who is about to be executed because one witness is confident that Mr. Graham is the killer she saw from 30 to 40 feet away. This woman saw the murderer for only a fraction of the time that I saw the man who raped me. Several other witnesses contradict her, but the jury that convicted Mr. Graham never heard any of the conflicting testimony.

If anything good can come out of what Ronald Cotton suffered because of my limitations as a human being, let it be an awareness of the fact that eyewitnesses can and do make mistakes. I have now had occasion to study this subject a bit, and I have come to realize that eyewitness error has been recognized as the leading cause of wrongful convictions. One witness is not enough, especially when her story is contradicted by other good people.

Last week, I traveled to Houston to beg Gov. George W. Bush and his parole board not to execute Gary Graham based on this kind of evidence. I have never before spoken out on behalf of any inmate. I stood with a group of 11 men and women who had been convicted based on mistaken eyewitness testimony, only to be exonerated later by DNA or other evidence.  With them, I urged the Texas officials to grant Gary Graham a new trial, so that the eyewitnesses who are so sure that he is innocent can at long last be heard.

I know that there is an eyewitness who is absolutely positive she saw Gary Graham commit murder. But she cannot possibly be any more positive than I was about Ronald Cotton. What if she is dead wrong?

Jennifer Thompson spoke at the 2013 Innocence Network Conference in Charlotte, NC. The panel’s topic was “victims of men later found to have been wrongly convicted”.