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James
Lockyer | Las Vegas
Prosecutors | Kaufman
Inquiry into Guy Paul Morin |
Prosecutor's
Report on Wrongful convictions
First national examination of the reasons
for so many wrongful convictions in Canada. If the recommendations from this report
are followed through, malicious prosecutions would become virtually
impossible. Of course they would have to stop looking the other
way when police present them with evidence they know is in violation
of accused's Charter Rights, or would outrage the community .
. .
Manitoba Deputy Attorney-General
Bruce MacFarlane provided a lot of input for the report. As far
as we can find out, the Saskatchewan government did not, although
one news report said that the report was adopted by all provincial
justice ministers.
Report
tackles wrongful convictions
By KIRK MAKIN, Globe
and Mail, January 26, 2005
A crackdown on the use of jailhouse
informants and closer supervision of Crown prosecutors would
reduce the number of wrongful convictions across the country,
says a report from a unique alliance of governments, prosecutors
and police.
Released at a meeting of federal-provincial
justice ministers yesterday, the landmark report contains a strenuous
warning against prison inmates who fabricate evidence for personal
gain.
"The in-custody informer
should not be relied upon except where there is a compelling
public interest in doing so," it says. "In-custody
informers who give false evidence should be vigorously and diligently
prosecuted in order to, among other things, deter like-minded
members of the prison population."
The 155-page report is the
first attempt by both levels of government, senior prosecutors
and police chiefs to work together to prevent miscarriages of
justice.
Some of its recommendations
echo those of three previous provincial inquiries into wrongful
convictions, but those lacked a national scope and the participation
of law enforcement.
"What is startling is
that some problems, themes and mistakes arise time and time again,
regardless of where the miscarriage of justice took place,"
the report says. "These problems relate to the conduct of
police, Crowns, defence lawyers, judges and forensic scientists,
and they are not confined to proceedings in the courtroom."
It identifies police and prosecutorial
"tunnel vision" as a particularly insidious threat
that can be blunted only through special training and procedures.
"Tunnel vision must be
guarded against vigilantly, as it is a trap that can capture
even the best police officer or prosecutor," the report
says. "Prosecutors must be wary of being caught up in the
enthusiasm of the investigators."
Federal Justice Minister Irwin
Cotler yesterday called the report a milestone and said that
his government fully supports its central conclusions.
"The most important thing
is the prevention of wrongful convictions to begin with,"
he said in an interview. "This report identifies ways that
various actors -- investigators, police, forensic scientists,
defence lawyers, among others -- can help prevent wrongful convictions."
Ontario Attorney-General Michael
Bryant stressed that the provinces and federal government unanimously
endorsed the report, but only time will tell how many recommendations
will find their way into public policy.
"We're not yet in a position
where we all are able to say yes or no to the particular details,
because those are still being worked out," he said.
The report also urges the creation
of jailhouse-informer registries in each province -- and perhaps
nationally -- to store information on previous testimony from
informers.
And it says procedures for
police identification line-ups and photo-spreads must be standardized
to prevent witness testimony becoming tainted.
The report also proposes that:
The federal DNA data bank be
expanded;
Police videotape statements
from suspects;
Prosecutors meet with witnesses
only with a third party present to verify what is said;
Police and prosecutors be trained
to recognize the warnings signs of tunnel vision;
Prosecutors get guidelines
for what to do when an accused person has inadequate defence
counsel;
Police be trained to detect
false confessions, a major, little-recognized reason for many
wrongful convictions;
Prosecutors who advise police
on laying a charge be replaced before a trial to prevent blindness
to weaknesses in a case;
Defence lawyers seeking independent,
scientific testing have easy access to forensic materials;
Specialized courses that include
case studies and personal appearances by exonerated defendants
for law schools, judges, police, prosecutors and forensic scientists.
The report says that a permanent
committee of prosecutors and police has been set up to monitor
its implementation. It says governments will also help organize
a major international conference on wrongful convictions in Manitoba
next fall.
James Lockyer, a lawyer with
the Association in Defence of the Wrongly Convicted, said the
report will be very helpful in persuading recalcitrant authorities
that conditions remain ripe for wrongful convictions.
With a report from Michael Den Tandt
Prosecutor, heal thyself
A new blueprint
on minimizing wrongful convictions offers real hope for protecting
the innocent -- thanks to who wrote it, says Morin commissioner
FRED KAUFMAN
By FRED KAUFMAN, Globe
and Mail, February 9, 2005
The latest report on the recurring
problem of wrongful convictions in Canada and other parts of
the world says little new. Yet it carries particular weight because
it comes not from defence counsel and justice critics, but from
prosecutors and police.
The 151-page document, produced
by a working group chaired by Rob Finlayson, Manitoba's deputy
attorney-general, recommends proactive policies, protocols and
educational processes to guard against future miscarriages of
justice -- a working guide for those who investigate crime and
prosecute the accused.
In Canada, four cases of wrongful
conviction (Donald Marshall, David Milgaard, Guy Paul Morin and
Thomas Sophonow) have triggered extensive public inquiries. Britain,
Australia and New Zealand have struggled with this issue. In
the United States, Illinois governor George Ryan declared a moratorium
on executions. One of the cases that prompted his decision was
that of convicted murderer Anthony Porter, who came within 48
hours of being executed; Mr. Porter was later cleared by a group
of journalism students who found the real killer. Last week,
President George W. Bush proposed to lessen the danger of wrongful
convictions through more DNA testing.
Canada's latest report covers
such familiar problems as eyewitness identification, false confessions,
the use of jailhouse informers, DNA testing, expert testimony
and ineffective defence counsel. Its recommendations, coming
as they do from prosecutors and police, give new hope.
The report raises, but does
not discuss in detail, the question of ineffective defence counsel.
As noted U.S. defence lawyer Barry Scheck and his colleagues
point out in their seminal book Actual Innocence, incompetent
defence lawyers have contributed to several U.S. cases of wrongful
convictions. Canada's Marshall commission was critical of Mr.
Marshall's trial counsel, and Canadian courts have, in the past,
accepted inadequate representation as a ground of appeal.
This issue requires further
study, and the report suggests that an important aspect will
be to determine "the responsibilities of Crown counsel when
they suspect an accused person may not be getting effective counsel."
It's a delicate matter. I support the suggestion that "guidelines
should be developed to assist prosecutors in these difficult
ethical situations."
Some provinces, including Ontario,
have already put measures in place to guard against wrongful
convictions. The use of in-custody informers or "jailhouse
rats," for example, has been curbed. Let's hope that the
current momentum will bring about further action.
Identifying causes of wrongful
convictions is easier than preventing them. For example, most
observers agree that tunnel vision among police and prosecutors
is often a contributing factor in wrongful conviction cases,
and everyone suggests more education as a solution. But simply
providing lectures with no follow-up won't do the trick. What's
needed is commitment, from the top down. The report offers practical
suggestions, such as ensuring that the Crown attorney prosecuting
the case is not the same Crown who advised laying the charge.
Where feasible, the report suggests seeking second, less subjective,
opinions and case review.
Its other recommendations to
address tunnel vision, while entirely proper, are difficult to
effect. How to foster "a workplace culture that does not
discourage questions"? How to encourage respect for the
"mutual independence" of Crowns and police, "while
fostering co-operation and early consultation to ensure their
common goal of achieving justice"?
These goals are worthy, but,
in the short term, their implementation is wishful thinking.
On the matter of questionable
eyewitness identification and testimony, the report recommends
"reasonable standards and practices," none of which
should cause much opposition. Who'd quarrel with the suggestion
that a witness should be advised that the actual perpetrator
may not be in the lineup or photo spread, so as to avoid the
psychological pressure to make an identification that witnesses
sometimes feel?
The report devotes much space
to the use of jailhouse informers. Their testimony has been a
contributing factor in several high-profile convictions (the
Morin and Sophonow cases in Canada); it figured in 21 of 130
New York exonerations through DNA evidence. Should their testimony
be banned altogether? In the Morin case, I proposed severe limitations
on their use. The report doesn't suggest an outright ban, but
it urges extreme caution. It also urges that "in-custody
informers who give false evidence should be vigorously and diligently
prosecuted." Amen.
More contentious is the recommendation
to expand the existing DNA data bank. This will require further
study because any expansion, while helpful to the police, might
also encroach on guarantees in the Charter of Rights and Freedoms.
As the report notes, more education
is required "on the proper use, examination and cross-examination
of expert witnesses." I'd add that the experts, too, need
training on presenting their evidence in clear, intelligible
language, not subject to misinterpretation by a judge and jury.
The Morin case showed the harm done by an expert who stated that
fibres may come from a certain garment without adding three small
but vital words: "or may not."
Much of the report deals with
the need for better education. And it should be affordable (good
news for federal, provincial and territorial governments). A
national conference on wrongful convictions, sponsored by Manitoba
and the University of Manitoba, will take place in October. There,
and at similar meetings, the report urges the presentation of
case studies, video-linked conferences with speakers (including
the wrongfully convicted), and regular newsletters on miscarriage-of-justice
issues.
One witness told the Morin
inquiry that a wrongful conviction is a prosecutor's worst nightmare.
It is also a stain on society. The report is a step in the right
direction. If implemented, it will give police and prosecutors
time in the classroom to learn about minimizing the danger of
wrongful convictions. The final tests, however, will come in
police stations, prosecutors' offices and the nation's courtrooms.
Fred Kaufman, a retired
Quebec appeal-court judge, headed the Commission on Proceedings
Involving Guy Paul Morin and conducted a review of Steven Truscott's
application to the Minister of Justice to reopen his 1959 conviction
on a charge of murder.
Ending
legal injustices
The Star, Editorial: Jan. 27,
2005
Canada's justice system counts
the cases of David Milgaard, Donald Marshall and Guy Paul Morin
among its most spectacular failures.
Each was found guilty of murder,
spent years in prison and was subsequently exonerated. Each man's
life was devastated by his wrongful conviction.
Although justice eventually
prevailed, these cases shook public confidence in a system that
usually works but clearly is not infallible.
This week, senior Canadian
prosecutors and police chiefs took a welcome and promising step
toward ensuring such grave miscarriages of justice do not happen
again with the release of a report on preventing wrongful convictions.
Among the report's findings
is that "some problems, themes and mistakes arise time and
time again" in wrongful convictions. These include "tunnel
vision" on the part of police and prosecutors, mistaken
eyewitness testimony, false confessions, the use of jailhouse
informants, and problems with forensic evidence.
The report offers 40 recommendations,
including stricter guidelines on the use of often unreliable
prison sources, better education for police and prosecutors on
a range of issues, fostering a workplace culture that encourages
questions, tightened investigative procedures and allowing defence
lawyers to have forensic evidence tested independently. These
are reasonable measures that should help prevent wrongful convictions.
But some of the report's more
radical recommendations require further study. Notable among
them is the suggestion that Crown prosecutors may bear some responsibility
if they suspect an accused is being defended inadequately by
their own lawyer.
This report comes too late
for Milgaard, Marshall and Morin.
But it may ensure that others
do not endure the legal and personal nightmares that they did.
Released as the Ontario Court
of Appeal prepares to reconsider the 1959 murder conviction of
Steven Truscott, the report is a compelling call for vigilance
that should be taken seriously by all justice officials.
Wrongful convictions
plague justice system
Stephen Thorne, Canadian
Press, January 25, 2005
OTTAWA (CP) -- Wrongful
convictions continue to plague justice systems in Canada and
elsewhere despite studies and reports on the issue, says a report
by federal, provincial and territorial prosecutors and police.
"Various commissions and
studies in Canada and around the world have provided valuable
insight into the systemic causes of wrongful convictions and
into what has gone wrong in individual cases,'' says the report.
"What is startling, however,
is that some problems, themes and mistakes arise time and time
again, regardless of where the miscarriage of justice took place.''
Fault lies with the conduct
of police, prosecutors, defence lawyers, judges and forensic
scientists, and they are not confined to proceedings in the courtroom,
says the report.
Like disasters, miscarriages
of justice are rarely the result of a single mistake or event
but almost always the result of a series of events, says the
report presented Tuesday at a conference of justice ministers.
There are no simple solutions,
it says, and responsibility to prevent wrongful convictions lies
with all participants in all jurisdictions of the criminal justice
system.
"Police officers, Crown
counsel, forensic scientists, judges and defence counsel all
have a role to play in ensuring that innocent people are not
convicted of crimes they didn't commit,'' says the report.
"As useful as commissions
of inquiry may be, they usually come many years after the fact.
The goal of all justice system participants must be to prevent
wrongful convictions from occurring in the first place.''
The 155-page report says common
factors come up in wrongful convictions in Canada and elsewhere,
devoting a chapter to each with 40 recommendations:
· Tunnel vision, or "the single-minded and
overly narrow focus on an investigation or prosecutorial theory,''
is the leading cause of false convictions.
· Mistaken eyewitness identification and testimony can
come from ``the most well-meaning, honest and genuine eyewitness.''
· A New York study found 35 of the first 130 post-conviction
exonerations made on DNA evidence, or 27 per cent, involved false
confessions.
· In-custody informers are notoriously unreliable yet
still factor in a significant percentage of cases that end in
wrongful convictions.
· While not proof that one person or another committed
a crime, DNA evidence has proven many cases of false conviction.
· Refinements and education in forensic evidence and expert
testimony are needed.
The reporting panel led by
Rob Finlayson, Manitoba assistant deputy attorney general, concludes
that the criminal justice system must be constantly on guard
against factors that can contribute to miscarriages of justice.
Focusing primarily on serious
crimes such as homicides, its recommendations target everyone
from individual police officers and prosecutors to police and
prosecution services.
The report stresses the need
for continuing education and urges each prosecution service to
develop a comprehensive written plan to educate its prosecutors
on the causes and prevention of wrongful convictions.
It also recommends creation
of a virtual resource centre on the issue for police and prosecutors
and establishment of a permanent prosecutors' committee on the
prevention of wrongful convictions.
"The risk of error always
exists in any human endeavour,'' it says. ``In the justice system,
the consequences of a wrongful conviction can be tragic.
"The working group hopes
its recommendations, if implemented, will go a long way towards
reducing the risk of future wrongful convictions and ensuring
that the innocent are acquitted and the guilty convicted.''
© Canadian Press 2005
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Truth can never be
told so as to be understood, and not be believ'd. 
