May 1, 2015
If I’m right, the Supreme Court of Canada will rule today that wrongly convicted Ivan Henry has the right to sue the Crown for a breach of the Charter—no-one can be deprived of life, liberty and security of the person “except in accordance with the principles of fundamental justice.”
Henry’s lawyers argued in November 2014 that the Crown failed to disclose at trial a raft of potentially exculpatory information, including contradictory victim statements; the recovery of spermatozoa from some of the victims; and the fact that Donald McRae, a prolific sexual predator, had been a suspect.
As the law now stands, a wrongly convicted person must prove “malicious prosecution”—namely, an intentional abuse or perversion of the system of criminal justice for ends it was not designed to serve. In setting the bar so high twenty-five years ago, the highest Court in the land said it would be sufficient to ensure that the Crown would not be hindered in “the proper execution of its important public duties.”
The Court was right—only one case has succeeded since then.
However, should the Supreme Court of Canada rule in Henry’s favour, the need for proving malice will, at least in cases of wrongful conviction, be gone. Instead, any wrongly convicted person will simply be required to establish, at the very most, a “marked departure” from the standards expected of prosecutors within the profession.
In practical terms, what if any impact would such a decision have on Henry himself? From a legal perspective, precious little. While lawyers wrangle about the law’s niceties, Henry remains penniless; hoping that justice—the hard, cold cash kind—will occur before he dies.
Sentenced as a dangerous offender in 1983 for ten sex crimes he did not commit (see my book Innocence on Trial: The Framing of Ivan Henry (Heritage House, 2014)), Henry spent 27 years in prison before being acquitted—found “not guilty”—by the B.C. Court of Appeal in 2010. Arguing that he has not proven his factual innocence, the state has yet to pay him a dime in compensation.
Yet who among us could establish—if charged with a serious crime—that we are innocent? Absent DNA (in Henry’s case, the police “lost” the semen samples); an iron-clad alibi (the police and Crown failed to investigate his alibi statement); and/or the confession of the actual perpetrator (a man who went on to commit a minimum of 25, as high as 50, reported rapes after Henry was behind bars), proving actual innocence is well nigh impossible.
So much for the presumption of innocence, that “golden thread” supposedly running through our criminal justice system. The problem is that, once lost, that state of innocence is seemingly impossible to recover—no matter how reprehensible the behaviour of police and Crown.
Now sixty-eight, Henry has no money—no pension, no savings (he’d spent the pittance he earned in prison trying to win his freedom), and no job. Virtually unemployable, his health affected by years of inadequate medical and dental treatment, he has dedicated himself to alleviating the suffering endured by his two adult daughters by reason of his longterm incarceration. Tragically, the younger daughter passed on earlier this year. Henry blames the state for her demise—not just for wrongly convicting him in the first place, but for their abysmal treatment of him post-release.
(As a disturbing aside, guilty offenders get treated better than the wrongly convicted. Once released, they have the benefit of a half-way house, including board and room and the camaraderie of a peer group; help with job searches, financial and psychological counseling; etc.)
Should Henry succeed, a small ray of hope might open for him—the possibility that the defendants might see the light and initiate serious settlement discussions.
In 1999, David Milgaard received a $10 million settlement for his wrongful conviction. The facts of the Ivan Henry case cry out for a sum well in excess of that.
As though any amount of money could compensate him for the life of pain and suffering he has endured.
Still and all, money is money, and a nudge from the Supreme Court of Canada in the right direction cannot hurt.
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.
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.]
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.
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.