Is the Current Federal Government “Wrong on Crime”?

January 30, 2015: MP Joyce Murray’s “Breakfast Connections”

Thx to (wrongly convicted) Tom Sophonow for his presence here this morning….

Before addressing the topic at hand, let me tell you about one of the most egregious cases of wrongful conviction in Canadian history.

As I chronicle in my book, Innocence on Trial: The Framing of Ivan Henry, Henry was convicted in 1983 for 10 sex crimes; declared a dangerous offender six months later; spent the next 27 years in jail—-all of this for crimes he did not commit.

Acquitted in 2010, he has been waiting, going on five long years, for a dime in compensation. Instead of coming to grips with the inevitable fact that Henry, a senior citizen, is factually innocent, the federal and provincial governments continues to throw up legal roadblocks every step of the way. Meanwhile, Henry lives close to the poverty line.

Having tracked the injustices that befell Henry for almost four years, I conclude that every criminal justice stakeholder failed to protect and defend the “presumption of innocence” owed to every citizen—the police, the prosecutors, his own lawyer at the preliminary hearing; state-appointed psychiatrists, the parole board, Correctional Service of Canada; and the many politicians who were asked, over the years, to reopen his case.

The “presumption of innocence”, once lost, is almost impossible to restore. Absent DNA evidence, an iron-clad alibi, or the confession of the actual culprit, findings of “factual innocence” remain elusive. In Henry’s case, the state “lost” the semen samples and made no attempt to check out his alibi statement. As for the “actual culprit”, the state—for reasons I have yet to uncover—made Henry the scapegoat and let the real perpetrator go free.

For years, wrongful conviction inquiry commissioners have been recommending that, rather than treat claims of wrongful conviction on a piece-mail basis—as is happening with Henry—the British model should be adopted, namely the investigation of claims of wrongful conviction should be handled by a review agency independent of government. Further, it is that independent review agency, not the federal Minister, who should act as the gate-keeper.

“Change is needed,” said the commissioner in the David Milgaard case, “to reflect the current understanding of the inevitability of wrongful convictions and the responsibility of the criminal justice system to correct its own errors….

We are still awaiting the establishment of such an independent agency. Please do what you can to propel forward this important initiative.
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POLITICS OF FEAR

Is Canada’s new “punishment agenda” “wrong on crime?”

The philosopher Friedrich Nietzsche wrote:
But thus I counsel you my friends: Mistrust all in whom the urge to punish is powerful. They are people of a low sort and stock; the hangman and the bloodhound look out of their faces.

Sadly, the current Federal government is all hangman and bloodhound. To the best of my knowledge—I stand to be corrected—the word “rehabilitation” has never crossed the PM’’s lips.

What is the current policy, why is it wrong, and what can be done to convince Canadians to push back?

THE LEGAL FRAMEWORK

The Corrections and Conditional Release Act (CCRA), enacted in 1992, governs the Correctional Service of Canada (CSC).The CCRA strives—and this may surprise you—to, and I quote, “strike a fair balance between the two inter-related strategies of control and assistance—

“Control” meaning exercising reasonable, safe, secure, and humane control of offenders both in correctional institutions and under supervision in the community; and
“Assistance” meaning assisting and encouraging offenders to become law-abiding citizens.

The Act further provides:

The principal goal is public safety. This is promoted by proper control of offenders and with programs that help individuals rehabilitate. Rehabilitation programs are important because most offenders will complete their sentence and return to the community….

It is important to prepare inmates for a successful return to the community as law-abiding citizens. This strategy contributes to long-term public safety.

WAR ON CRIME

In 2011, the Tories removed the “faint hope” clause that allowed lifers to apply to a jury after 15 years for the right to an early parole hearing.

In 2012, they enacted Bill C-10: Safe Streets and Communities Act. As predicted, the Act has led to the need for more prisons; the incarceration of people for minor, non-violent offences; and poorer prison conditions including over-crowding, fewer “pro-social programs, and a higher incidence of “administrative” solitary confinement—Bottom line? Isolation of indeterminate duration.

The government, showing no signs of slowing down on its “war on crime”, has recently announced plans to make violent repeat criminals wait longer to achieve “statutory release.” As well, the Tories want to end the possibility of parole for some convicted killers.

Addressing the impact of Bill C-10 in his 2014 Annual Report, Correctional Investigator Howard Sapers said,

“Use of force interventions, inmate fights and assaults, offender grievances and segregation placements are all trending upward in recent years. Key indicators against which safe and humane custody may be measured show there is more crowding, more disease and more violence in federal institutions.
Prisons that are filled beyond their rated cell capacities are at higher risk of jeopardizing safety and security of the person. Unnatural or preventable deaths in custody (suicides, homicides, overdoses) are perhaps the most visible failing, but too many other lives either are cut short by premature death or are marked by injury.

An increasing proportion of the offender population is spending more of their sentence behind bars before first release…”

I have been asked to share this morning what I have learned—as a result of both my volunteer activities in prison and research for my book—about current prison conditions.

Increasingly, inmates are being deprived of educational and job training opportunities; hurdles are being erected to such things as creative writing classes, access to good quality books and book clubs. Access to programs, spiritual leaders and other mentors such as teachers and librarians is being restricted; prison farms are being shut down; access to independent psychologists is almost unheard of, etc.

After volunteering for 8 months, on Friday mornings, as a creative writing instructor at Matsqui Medium Security institution, one day I was “escorted”, out of the blue, off the property. Not a word of explanation; not a hint of an apology.

Months later, I was told the reason: I hadn’t taken a 3-hour volunteer training program, a program I had no idea existed…. I never went back. (I’ve talked to other volunteers who’ve had the same experience—the experience of not feeling wanted—especially among those who develop rapport with the inmates.)

When I developed pen-pal and “visitor” relationships with a number of prisoners, CSC treated me like an alien: On the one hand, to every appearance I was engaged in “pro-social” behaviour—behaviour aimed at assisting in the reintegration process. On the other hand, it was clear they believed I had some kind of ulterior motive.

I was once put on notice that I was writing to too many inmates; on another occasion, that I couldn’t be on more than one inmate’s visitor’s list, etc. When I threatened to go public, CSC backed down….

How many other families and loved ones would have the gumption to do likewise?

[One brief ray of light: Though I expressed frustration at the Joyce Murray breakfast that CSC appeared poised to reject my offer to donate my book to every federal correctional institution in Canada, they have now said I may. Needless to say, I would have gone public had they not.]
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LIGHTING A FIRE UNDER OUR CITIZENS

A. The Problem

By hyper-focusing on the rights and interests of the “victim”, our prime minister plays into what Dan Gardner has called the “science and politics of fear.”

In his excellent book, Risk (2008, Virgin), Gardner writes that humanity has never had it so good. Most people around the world are better off and will live longer than their ancestors.

But instead of being relaxed, we are scared that bad things will happen to us: nuclear war, cancer, child abduction.

Our brain anatomy, Gardner says, was fixed millennia ago—such that we are not equipped to process the complexity of modern living, especially where risk is concerned. We hear about a terrorist attack; we see the gruesome consequences on TV and, before we can calculate the probability that we personally will be blown up, our brains have reacted as if we are being charged by a rhino: no time to think! Run!

If you think you don’t believe everything you see on TV, he says, it doesn’t matter. Your Stone Age brain has processed the images and is using them to shape your opinions whether you like it or not.

“It could have been me” is a common response to news of a disaster, although usually the mathematical probability of it actually having been you is infinitesimal. FEAR SELLS.

The only solution, Gardner says, is to think more, think harder—The primitive part of our brains might be open to seduction by alarmist politicians, but, given enough time, the rational part can step in and stop us from going all the way.

Alas, if only re-programming were that easy…

Ask yourself: Are you a “free-range” parent or grandparent—content to give children as much freedom as possible, for example, play in the park or walk home from school alone; etc? Or do you catastrophize—worry about the ills could befall them—abduction, getting hit by a car, getting lost, etc?

B. The “Right on Crime” movement: Shifting the narrative

According to Texas Republican Representative Jerry Madden, “It’s a very expensive thing to build new prisons and, if you build them, I guarantee you they will come. They’ll be filled, OK? Because people will send them there.”

Texas and California, among other jurisdictions who had started down the same “punishment” road down which our government is leading us, are now—realizing it cost too much and made their justice system worse—reversing direction.

The topic today is whether Canada’s new punishment justice policy is ‘Wrong on Crime’? Ironically, this “Right on Crime” movement-led by Republicans, no less—is building momentum in the United States.

In an article entitled “The Conservative Case for Reform,” dozens of high-ranking Republicans including Jeb Bush and Newt Gingrich write as follows:

“Too often the lens of accountability regarding government services has not focused as much on public safety policies as other areas of government. As such, Corrections spending is now the second fastest growing area of state budgets—trailing only Medicaid.

“Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending…. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders—making them a greater risk to the public than when they entered….

“An ideal criminal justice system works to reform amenable offenders who will return to society…

“Because incentives affect human behavior, policies for both offenders and the Corrections system must align incentives with our goals of public safety, victim restitution and satisfaction, and cost-effectiveness, thereby moving from a system that grows when it fails to one that rewards results.”

Viewed in the light of a system that “rewards results”, what sense does it make to remove the “faint hope” clause? Lock up low-risk offenders? Increase the time virtually every offender must spend behind bars?

From an economic perspective, does it make sense to deny forever the opportunity–not the reality—of parole to those convicted of certain first-degree murder offences? [Since the Joyce Murray breakfast, the government, anticipating court blow-back, has amended the bill so as to give judges the right to preclude parole applications for 40 (from the current 25) years.]

This despite Correctional watchdog Howard Sapers’ statement that 99 per cent of offenders released on day parole or full parole last year did so without reoffending.

Since the abolishment of capital punishment in 1976, the murder rate in Canada has been cut in half. Further facts:

—Canada has 1115 (first-degree murder) offenders sentenced to life, minimum 25 years. 203 have been paroled;

—Average cost to keep a man in Maximum security is $148,000 v. $35,000 on parole;

—40 years in jail would cost nearly $6 million for one person in Maximum security; $6 billion for 1,000; and

—In recent years, the website of CSC has described those serving life sentences as “The most likely to succeed on parole.”

The authors of “Right on Crime” point to the need take a principled approach to public safety. As they wrote, “Our security, prosperity, and freedom depend on it.”
Who would have thought that our Republican friends south of the border could offer their neighbours north of the ’49—neighbours historically smug about our supposedly “superior” criminal justice system—such invaluable insights?

As a wonderful prison chaplain once said to me, “Let he who has ears hear.” Let’s hope that we Canadians do just that.

Fallibility of Eye-Witness Testimony (Megan Cassidy; The Republic)

Three decades ago, a victim’s imperfect memory sent Larry Youngblood to prison.

DNA evidence would later clear the Tucson man of involvement with a 1983 child abduction and rape, but not before he would languish for a total of nine years behind bars.

Advocates are pointing to this case and a growing number of others to discredit the sanctity of one of the legal system’s most cherished prosecutorial tools: eyewitness testimony.

Last week, the National Academy of Sciences released a report evaluating the scientific research on memory and eyewitnesses, underlining key variables that can lead to flawed identifications.

The report recommends various best-practice procedures, including blind testing, (when the officer performing the lineup is unaware of the suspect), videotaping the procedure, developing standardized witness instructions and asking the witness to rate his or her level of confidence at the time of the lineup.

The Innocence Project, a national litigation and public-policy organization that lobbies for freedom of the wrongfully convicted, has pushed for states to uniformly adopt these techniques, to mixed results.

Ten states so far have enacted the recommendations by law, policy or court action. Arizona is not one of them, but some jurisdictions have voluntarily embraced the reforms.

Innocence Project officials have advocated presenting photos or suspects in sequential order instead of simultaneously. Supporters say research shows the method helps prevent wrongful convictions by reducing the pressure to “pick one.”

The Tucson Police Department was one of four agencies to participate in an Innocence Project and American Judicature Society field study using sequential testing. The agency adopted the method following the study’s report, said Tucson police legal adviser Lisa Judge.

“The impetus for us was doing what we could to rely on the most credible evidence available,” she said. “Certainly you can’t ignore that across the nation, there’s evidence that points to wrongful convictions based on bad IDS.”

Youngblood’s saga began in 1983, when a 10-year-old boy was kidnapped from a Pima County carnival, molested and held for more than an hour. The boy received a rape examination and told investigators his assailant was a Black man with a bad right eye.

But when police presented a photo lineup to the boy nine days later, it was Youngblood, a Black Tucson man with a disfigured left eye, who stood out. Youngblood was arrested four weeks later.

Youngblood’s chief defense in trial was that the boy had been mistaken, but a jury disagreed. He was convicted in 1985 and sentenced to 10½ years in prison. In a crucial misstep, Tucson police failed to properly store DNA evidence collected from the boy at the time, rendering it useless for emerging forensic technology.

Legal battles over Youngblood’s right to DNA would free and reincarcerate the man until more sophisticated DNA testing became available for the evidence. In 2000, Youngblood’s claims of innocence were at last scientifically validated. He was not the assailant.

Instead, the evidence led investigators to Walter Cruise, a Black man who was blind in his right eye, and serving time in a Texas prison for unrelated charges of sex assaults against children. Cruise later pleaded guilty to the Arizona crime.

Carol Wittels, Youngblood’s public defender who fought for his freedom, said the prosecution’s case hinged nearly entirely on the victim’s identification, despite conflicting evidence.

Several people vouched for Youngblood’s alibi — that he was baking lemon meringue pies at the time of the abduction, Wittels said.

The victim had also noted there were tufts of gray in his assailant’s hair, while a hair expert testified that Youngblood’s black locks had never been dyed.

“Larry’s case always haunted me — he was such a sweetie,” she said. “I knew he was innocent.”

Eyewitness misidentifications have contributed to 72 percent of the 318 convictions that were later overturned by DNA evidence, according to the Innocence Project.

The true perpetrators were later identified in 39 percent of those cases, but were free to commit 98 additional violent crimes while the innocent were locked up, the organization says.

Experts say most of the mistaken eyewitnesses aren’t intentionally lying. While no single factor shoulders the blame for the human error, researchers say police practices often fall short on their efforts to ensure accurate eyewitness identification.

“(I)nsufficient training, the absence of standard operating procedures and the continuing presence of actions and statements at the crime scene and elsewhere may intentionally or unintentionally influence eyewitness identifications,” the report states.

Scientists have long understood memory to be malleable by time and outside variables, but advocates say jurors still place too much trust on the brain’s accuracy.

Amshula Jayaram, a state policy advocate for the Innocence Project, explains the recommended reforms as a cost-benefit analysis.

Defenders are getting trained on how to litigate using current sciences, she said, and officers using best practices are also protecting themselves from accusations of wrongdoing during an unreliable process.

“These practices are designed to improve accuracy, but you’ll never have 100 percent accurate eyewitness identifications,” she said. “Memory is fundamentally fallible.”

Maricopa County Attorney Bill Montgomery said today it would be a rare case that rises or falls on the basis of an eyewitness alone without any other evidence.

Montgomery and Innocence Project officials have disagreed on the subject of sequential versus simultaneous eyewitness identification testing.

Montgomery said he has resisted the reform because scientific evidence has not backed up the claim that the sequential method is preferable. He pointed to a recent case in which a Pennsylvania man’s murder charges were dropped after a mistaken sequential identification.

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.

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.

 

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”.