- Gordon
Folland
| Guy
Paul Morin
| Peter
Frumusa
| Greg
Parsons
|
- James Lockyer
-
- The truth
is that there are several lawyers we admire. Lockyer is one,
Clayton
Ruby
Alan
Young,
Rocco
Galati
and Lockyer are others . Unfortunately for us in Saskatchewan,
they are in Ontario. They have taken risks and made sacrifices
in the service of justice. They have found the laws and precedents
which preserve justice and use them. They have locked horns with
their professional organizations to better the profession.
James
Driskell
-
-
- Court of last resort is the
way to go:
- Wrongly convicted should have
access to an independent tribunal
James Lockyer Special to
The Star, Nov. 8, 2002
Working within the system is
a lot safer than working outside, if only because you do not
have to face criminal conspiracy charges or, in my profession,
law society disciplinary procedures for your efforts.
The system likes you more if
you pay it some respect. To use Lyndon Johnson's famous aphorism,
"They'd sooner have someone inside the tent pissing out,
than outside the tent pissing in."
To a lesser or greater extent,
I have worked within the system but "against" it for
30 years. I might be viewed as an outsider working inside. In
the past 10 years, that work has mostly involved helping people
convicted of crimes they did not commit, through the Association
In Defence of the Wrongly Convicted (AIDWYC).
The justice establishment is
not as amorphous and unresponsive as the financial elite is.
The work appeals because it is oriented toward helping the individual
who is in desperate need of a professional to use the system's
levers. It sometimes helps if you are a lawyer, although Joyce
Milgaard, who is not a lawyer, did a better job for her son David
than any lawyer could have.
It is immensely rewarding work.
The highlights of my professional life have been the exoneration
of Guy Paul Morin, David Milgaard, Clayton Johnson and others.
Johnson's case was probably
the most satisfying. We at AIDWYC worked on his case for seven
long years. He was convicted of murdering his wife, Janice, when,
in fact, she had died from injuries suffered as a result of an
accidental fall. Earlier this year, it was very moving to hear
Chief Justice Joseph Kennedy of the Nova Scotia Supreme Court
say, "Mr. Johnson, you leave this court today an innocent
man."
But we have had our failures,
too. I can never forget Easter 2000, when Nguyen Thi Hiep was
shot by firing squad in Hanoi for a crime she did not commit.
The only remedy today for a
wrongly convicted person who has exhausted his or her appeals
is to seek help from the minister of justice. Not surprisingly,
this has proved an unsatisfactory system. We need a new judicial
tribunal, independent of government, to be able to review claims
of wrongful conviction.
Do I legitimize the present
system by working within it? Certainly, the minister of justice
has pointed to cases like that of Clayton Johnson to argue that
it works. In fact, the opposite is true. Johnson was lucky because
he got our attention. There are many more Clayton Johnsons whom
we will never have the resources to assist but whom an independent
tribunal could help.
The type of system and the
type of issue help dictate the best way to seek fundamental
change. And there is a fine line between working within, or without,
the system. If I were like John Clarke, the poverty activist
with the Ontario Coalition Against Poverty, maybe I would have
chosen his road. But let us not forget Clarke will need a lawyer
in good standing to represent him if he gets charged.
James Lockyer is a Toronto
lawyer and director of the Association In Defence of the Wrongly
Convicted.
The lawyer who has 'a cause
for a client'
James Lockyer
is famous for clearing the wrongfully convicted.He's not so big
on helping the guilty.
Wednesday, May 12, 1999,
Kirk Makin, Justice Reporter, Globe and Mail
Whitby, Ont. -- On his third
night of waiting fretfully for a jury to decide the fate of accused
murderer Jesse Watkins, defence lawyer James Lockyer shuddered
when he heard loud footsteps approaching the counsel room in
the Whitby regional courthouse.
He was not yet ready to face
the moment of truth. Then again, Mr. Lockyer never is.
"I hate waiting for juries
more than anything else," he explained, hunched over a work
file brought along as a distraction. "The moment they go
out to deliberate, I suddenly find it impossible to picture them
coming back and saying, 'Not guilty.' "
The footsteps turned out to
be a false alarm. The next day, the jurors finally returned and,
to Mr. Lock- yer's enormous relief, pronounced Mr.Watkins not
guilty of strangling his girlfriend and making it look as though
she had hanged herself.
However, the surprising victory
did not change the fact that this high-profile 49-year-old advocate
has had too many such nights. He is losing his stomach for trials.
There are too many unpredictable
witnesses, too much tension and, perhaps most of all, too many
guilty defendants. Mr. Lockyer adheres to the dictum that even
the most heinous client deserves a defence, but he has lost interest
in being the one who provides it.
"I'm sure some lawyers
would not be comfortable with that. But I just don't want to
spend my time and energies on someone who did it when I know
there are people out there who didn't."
He isn't hard up for business.
His client list, which features such entries as Guy Paul Morin
and David Milgaard, amounts to a Canadian Who's Who of wrongful
conviction -- the issue with which Mr. Lockyer has become indelibly
associated in recent years.
As Crown prosecutor Scott Hutchison
put it, Mr. Lockyer now has "a cause for a client."
Toronto defence lawyer Melvyn
Green agrees that Mr. Lockyer has made the cause his own. "James
has worked extraordinarily hard at it," Mr. Green said.
"I think he is the lawyer most responsible for raising public
consciousness about the risk of wrongful convictions."
Mr. Lockyer reached this pinnacle
more by accident than by intention. One of three children, he
was born on Dec. 21, 1949, in Orpington, England. At 13, he was
shipped 150 kilometres from home to begin public school. He later
went to the University of Nottingham for law, but instead discovered
the Sixties counterculture.
"I was very much a part
of the hippie era," he recalled. "I had hair halfway
down my back, went to all the pop festivals and may or may not
have enjoyed the odd narcotic."
One day, he attended a protest
rally against the visit of a touring South African soccer team.
"I underwent an overnight radicalization. The anti-apartheid
struggle radicalized me from being a snotty-nosed public-school
boy -- which in many ways I still am -- to becoming a socialist."
He came to Canada in 1972,
accepting a scholarship to McGill University inMontreal mainly
to prolong the joys of campus life. After graduating, he joined
the faculty at the University of Windsor, teaching corporate
and civil law. He also helped to organize demonstrations against
local landlords and the Chilean junta of Augusto Pinochet.
But then, Mr. Lockyer, bored
with the law governing contracts and trusts, fired off letters
to a dozen Toronto lawyers whose politics he admired. The first
to respond was Charles Roach, a vocal spokesman for the black
community who specialized in civil rights and immigration cases.
He hired Mr. Lockyer on the spot.
Three years later, he was approached
through a colleague by Jack Pinkofsky,a relentless pit bull of
a lawyer known for taking on the police and legal establishment.
"I knew he was a fighter, and that's how he perceived me,"
Mr. Lockyer said. "On April 1, 1980, we formed a law firm.
We have since become this juggernaut law firm."
With more than 20 lawyers on
staff, Lockyer dwarfs all other criminal firms in the country.
"It is, frankly, bigger than I ever wanted to be,"
Mr. Lockyer admitted.
Known for its aggressiveness
both in acquiring clients and in representing them, its lawyers
are ubiquitous in the criminal courts of Toronto. "It is
a high-volume, high-quality practice," a local prosecutor
observed. "They fight cases where other lawyers would just
tell their clients to take the plea."
Over his career, Mr. Lockyer
has fought 75 appeals, crossing swords with Mr.Hutchison in the
one for Mr. Morin's 1992 murder conviction, as well as 15 murder
trials and hundreds of lesser cases.
His growing interest in tackling
appeals isn't due only to misgivings about being a trial lawyer.
"If you want to leave a more significant imprint on the
world, appeal judgments have impact for years and decades,"
he said. "You get more structural change from them than
from a trial."
There are also the inquiries.
Mr. Lockyer spent all of 1997 representing the family of Guy
Paul Morin at the Kaufman inquiry into Mr. Morin's wrongful conviction,
and he has been asked by Joyce Milgaard to play a similar role
at an coming inquiry into the case of her son, David Milgaard.
The Morin inquiry was heaven-sent.
"In Guy Paul's case, we had a real, live case of national
interest," Mr. Lockyer said. "Yes, I wanted the inquiry
to hurt the system. But I also wanted to work with the inquiry
to have a significant impact on the system."
Mr. Lockyer wanted to convey
his abiding belief that the justice system is geared toward securing
convictions, not finding the truth; and that police and prosecutors
develop tunnel vision by convincing themselves that defendants
are as guilty as sin.
"Prosecutors like to say
their worst nightmare is prosecuting an innocent person,"
Mr. Lockyer said. "I don't believe it for a minute. A prosecutor's
worst nightmare is having to admit they prosecuted an innocent
man. A wrongly convicted person becomes a victim on an express
train without brakes."
Since helping a Toronto lawyer
and friend, Peter Meier, found the Association in Defence of
the Wrongly Convicted, Mr. Lockyer has, for little or no pay,
spent hundreds of hours cajoling witnesses, lining up experts
and publicizing the issue.
As well as costing him tens
of thousands of dollars a year in forgone fees, his cause has
had another unforeseen effect. In a relatively short period,
he has gone from being a fire-breathing advocate to someone who
chooses his targets carefully and strives to avoid looking like
a zealot.
"I suppose it is the old
adage about catching more flies with honey than with vinegar,"
he said. "I think it is more effective to be aggressive
in dulcet terms than to rant and rave. There are occasions when
I still breathe fire, but I am definitely more temperate now
than I used to be."
Trust and credibility are vital
when trying to persuade the judiciary, the media and the public
that a convicted killer is really innocent, he said.
At the same time, he is still
capable of flaying a witness he sees as untruthful. For example,
he launched the Morin inquiry in such a hard-driving manner that
opponents were jumping to their feet in protest.
Outside the hearing room, however,
he worried aloud that being too strident could cost the inquiry
its credibility. He frequently approached observers to ask, "Am
I being too aggressive?" Eventually, he settled into a pattern
of carefully tailoring the attack to suit the culpability of
the witness.
"When you don't barnstorm
by exaggeration, people become more respectful of you,"
he said. "Hopefully, you develop a reputation as someone
who, if you say something, it is likely to have some merit. You
can also lose your point if you try to make too much theatre
of it."
One of his more devastating
attacks involved Norman Erickson, who had retired from the Centre
of Forensic Science shortly after helping to identify critical
fibre and hair links in the Morin prosecution.
It emerged during the inquiry
that Mr. Erickson had suppressed evidence that samples had been
contaminated in his lab. Had it come before the 1992 trial, this
revelation probably would have shattered the Crown's chances
of obtaining a conviction.
Mr. Lockyer dealt with Mr.
Erickson harshly during his cross-examination. But afterward,
he sought him out in private. "I told him I was very sorry.
I said I didn't feel very good about what I was doing, but I
had to do it.
"He made it clear it was
very hurtful to him, but he didn't appear to resent me for it."
Mr. Lockyer also has made some
enemies because of his unsparing attitude toward Crown prosecutors.
"I think a lot of Crowns
may feel that he has gone over the top on certain situations,"
said Mr. Hutchison, the Ontario prosecutor. "I have from
time to time thought that myself. But I don't think the respect
for him [among prosecutors] is grudging any more."
While Mr. Lockyer can be scathing
about individual prosecutors, Mr. Hutchison said, "I think
James has a lot more respect for the prosecution service than
he would say publicly. In my experience, he is a fair opponent.
He likes the idea of holding the system's feet to the fire. But,
unlike some other lawyers, he backs up his accusations by being
an excellent, well-prepared advocate."
Among his defence colleagues,
respect for Mr. Lockyer's skills and determination also has risen,
although some still consider him self-righteous and egotistical
at times.
"He can certainly be abrasive,"
one Toronto defence counsel said. "But, as a lawyer, he
serves an absolutely important role. Nobody else is doing what
he is doing."
Another remarked: "He
thrives on media attention, but it nurtures him in what he does.
If it takes feeding his ego to bring the results he gets, that
is just fine with me."
Mr. Lockyer speaks at numerous
conferences and workshops -- usually about the wrongly convicted
-- and is a relentless researcher, sometimes working through
the entire night.
"If you take this job
seriously -- which you must, since other people's lives are in
your hands -- it is hard not to live, eat and sleep each case,"
he said.
His accomplishments have come
with a price. Others at his firm disapprove of how much time
he devotes to his cause, and his personal life has been thrust
into the background.
Once married but now single,
he spends much of his rare leisure time sailing. At such times,
he refuses to talk about work, reverting to a side of his personality
friends describe as boyishly engaging and mischievous.
He is a committed New Democrat
who has twice run for the party as a sacrificial lamb in unwinnable
federal ridings. He also is a founding director of New Leaf,
a 15-year-old home for the developmentally handicapped north
of Toronto. He became involved because a close friend, Stan Smith,
created the centre.
When fighting to free someone
he feels was wrongly convicted, Mr. Lockyer works a deft juggling
act.
First, he and his colleagues
at the Association in Defence of the Wrongly Convicted search
for the sort of fresh evidence appeal courts are likely to need
to order a new trial.
"The problem with appeal
courts is they are focused on process, not on guilt or innocence,"
he explained. "The way around this is fresh evidence --
and in probably one-third of my appeals, I find it."
Behind the scenes, meanwhile,
he alternately strokes and scolds police and prosecutors. At
the right moment, Mr. Lockyer will court media publicity in order
to apply pressure to officialdom.
He is a master of pulling the
right levers, said Mr. Green, the defence lawyer.
Mr. Green recalled that during
the campaign to win Nova Scotia's Clayton Johnson a new trial
in the murder of his wife, Mr. Lockyer hunted down scientific
experts from around North America in order to shatter the prosecution
case.
"Then, he fielded phone
calls and orchestrated the media, letting out little bits of
the story. He was choreographing it all, and I have to admit,
I was seriously impressed. It was masterful."
Mr. Lockyer said the key is
to avoid publicizing a case until he has not only become personally
convinced of his client's innocence, but also has tested it by
describing the case in detail to a dozen discerning friends and
colleagues.
"If anything, you try
to downplay the case," he said. "You never overplay
your hand, or you will immediately lose the media. You always
worry that you will pick up a case where you will be made to
look foolish. It's dangerous. Once you've got credibility, it
is not something you want to lose."
This, he conceded, has led
some colleagues to view him as a publicity seeker, but that impression,
even if misleading, is the price that must be paid when fighting
for a high-profile cause.
"Publicity is an essential
weapon in satisfying sectors of the public and the system itself
that a person has been convicted of a crime he didn't commit,"
Mr. Lockyer said.
"But I hope I am not a
self-publicizer. I am fairly self-conscious about fame. I don't
necessarily have the self-confidence that I project in public."
INNOCENCE LOST James Lockyer
estimates that before he began to focus on cases of wrongful
conviction, one-quarter of the clients he represented in trials
or appeals really were innocent. At least two of them were found
guilty anyway.
In both instances, he said,
his own reaction was most unorthodox. Overcome by emotion, he
informed the presiding judges that they had just convicted innocent
men.
One case was in 1988, when
he defended a Jamaican immigrant found guilty of robbing a pizza
delivery man and jailed for two years less a day.
"I was crying and asked
for a recess," Mr. Lockyer recalled. "Afterward, when
I had more control, I told the judge: 'As a member of the bar,
I feel it is necessary for me to tell you that this man didn't
do the crime, and this is a terrible miscarriage of justice.'
"Then, I went down to
the cells to apologize. My client was in a genuine state of confusion.
All he could say was: 'Why did he convict me of this when I didn't
do it?' "
It was a formative experience
made more palatable when Mr. Lockyer won the case on appeal.
The other case involved a man
charged with knocking an elderly woman down and snatching her
purse. He was convicted only because she identified him.
"I still recall the victim
saying there was good lighting for her to see my client,"
Mr. Lockyer said wryly. "There had been a full moon that
night."
The defendant, who had a long
criminal record, was given a two-year prison sentence.
JUSTICE DELAYED
Wrongful convictions
overturned with the help of James Lockyer:
Guy Paul Morin: After his 1992
conviction for the murder of nine-year-old Christine Jessop north
of Toronto, Mr. Lockyer spent hundreds of hours preparing Mr.
Morin's appeal. After Mr. Morin was exonerated by DNA testing,
Mr. Lockyer spent a year acting for the Morin family at a public
inquiry.
David Milgaard: After he spent
23 years behind bars for his conviction in the murder of Saskatoon
nurse Gail Miller, Mr. Lockyer helped clear his name by arranging
DNA testing in Britain.
Peter Frumusa: He spent almost
nine years in prison before being exonerated of the murder of
a Niagara Falls, Ont., couple, Richard and Annie Wilson. Mr.
Lockyer was Mr. Frumusa's trial lawyer as well as his counsel
before the Ontario Court of Appeal.
Gregory Parsons: Mr. Lockyer
was brought in by lawyer Jerome Kennedy to press the Crown to
exonerate Mr. Parsons, a St. John's resident convicted of murdering
his mother in 1991.
Gordon
Folland: He served
almost three years for his conviction for rape of an acquaintance
before Mr. Lockyer got the conviction overturned this year.
Those still fighting to be
cleared:
Clayton Johnson: A Nova Scotian
convicted in 1993 of murdering his wife, he was recently freed
on bail and may soon be exonerated.
Roy Kenshin Lee: Imprisoned
in 1988 after being convicted of murdering Niagara Falls, Ont.,
strip-club bouncer Robert Borden, he is seeking a new trial based
on DNA testing that casts serious doubt on his guilt.
Stephen Truscott: Convicted
as a teenager in 1959 of murdering Lynne Harper, he was released
on parole in 1969 and now seeks exoneration using DNA testing
and new pathology evidence.
Robert Baltovitch: He is a
Scarborough, Ont., resident convicted in 1992 of murdering his
girlfriend, Elizabeth Bain, but believed by many to be innocent.
Mr. Lockyer would not confirm persistent rumours in the legal
community that he has been hired to plead Mr. Baltovitch's case.
COPYRIGHT 1999 GLOBE AND
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|
A
presentation on cross-examining police | Rubin
"Hurricane" Carter | From the University of Missouri at
Kansas City School of Law | Visit Jurist | for a whole list
of famous
trials
| or chronological prepared by Dr. Linder
| Inherit
the wind
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
