|
 January 25, 2005: The Federal government
released the
first national examination of the reasons for so many wrongful
convictions in Canada. This should be required reading for every prosecutor,
cop and criminal defence lawyer in the country. News
reports
Update on wrongful convictions in Canada, October,
2004 | Terry
Arnold "found dead" New
: Blogging
RCMP informants
Thomas Sophonow
(4)
JUSTICE ON
TRIAL
LEAH JANZEN, Sun, Jun 17,
2001, Winnipeg Free Press
It was a late
afternoon in August, 1981 when Tom Sophonow pulled into the parking
lot of Ryan's restaurant in Hope, B.C. After more than 20 hours
driving west through the staggering heat and monotony of the
prairies, the scruffy Sophonow and his equally ragged 1971 Monte
Carlo were showing the strain.
Bleary-eyed
and exhausted, Sophonow was returning home to Vancouver from
one of his regular trips to Winnipeg to visit his two-year-old
daughter, Kimberly. His legs were cramped and sore from the hours
spent driving and he wanted nothing more than to get home and
put the trip behind him. And yet, the chicken pot pie at Ryan's
had always been a highlight of the frequent trips he had made
between his Vancouver home and Winnipeg. A little comfort food
and a brief rest would help get him through the last two hours.
With a late
lunch in his belly, Sophonow was on his way to the bathroom when
he saw an RCMP poster asking for information about the disappearance
of a teenage girl. The picture in the poster bore a striking
resemblance to a young girl who had sometimes baby-sat for a
girlfriend's child in Winnipeg. Sophonow could not be sure, but
he figured a call to police was the right thing to do.
As he dropped
a dime into the restaurant payphone, Sophonow could not have
known that he had triggered a series of events that within a
few months, would make him the villain in one of Manitoba's most
shocking crimes. Shortly that innocent phone call, Sophonow was
in shackles and facing a murder charge for the brutal slaying
of Winnipeg teenager Barbara Stoppel.
In all, Sophonow
would stand trial three times for Stoppel's murder. The first
trial resulted in a hung jury. In the second and third trials
he would be convicted only to have the verdict overturned on
appeal. Eventually, it took an edict from the Supreme Court of
Canada to stop the province from seeking a fourth trial. While
he waited for his legal nightmare to come to an end Sophonow
languished for three years and nine months behind bars. In prison
Sophonow suffered assaults at the hands of other prisoners who
assigned the killer of a young girl to the lowest caste within
the prison hierarchy.
Over the last
eight months, testimony at a judicial inquiry into Sophonow's
case has painted a disturbing picture of how intense public pressure
to solve Stoppel's murder led police and prosecutors to bend
or break many of the rules of the justice system. Overwhelmed
with leads, police mishandled key evidence, discarded viable
suspects and ignored witnesses who could have helped them find
the real killer. The inquiry heard from eyewitnesses who claimed
they were threatened and manipulated by police. And Crown attorneys
charged with winning a conviction against Sophonow have admitted
they withheld key evidence and witnesses from defence lawyers.
The Crown also paraded a rogue's gallery of jailhouse informants
and a unsupported sexual assault theory before jurors in a desperate
bid to convict Sophonow.
The judicial
inquiry has not just focused on Sophonow's legal ordeal, but
also the horrible burden he has carried over the last 20 years.
The Supreme Court may have ended Sophonow's legal battles in
1985 but that verdict did nothing to clear his name. Sophonow
cobble together a family life -- eventually marrying and establishing
a home with his wife and three children in the B.C. lower mainland.
But a shroud of doubt and suspicion followed him everywhere.
Neighbours
and co-workers gave a wide berth to the man they believed had
gotten away with murder. Parents forbid their kids to play with
the Sophonow children. Sophonow's lowest periods were marked
by psychotic episodes, deep depression and despair. In 1995 his
home was firebombed while he and his pregnant wife were sleeping
inside. But he never gave up fighting his fierce, lonely and
often hopeless battle to establish his innocence.
Last summer,
Sophonow finally won exoneration when the Winnipeg police and
Manitoba government offered unqualified apologies for involving
Sophonow in the crime announced they were pursuing a new suspect.
A judicial inquiry -- headed by retired Supreme Court of Canada
Justice Peter Cory -- was struck to assign compensation for Sophonow
and review the actions of the police and prosecutors who pursued
him.
Over 65 witnesses
have tried to answer troubling questions about how Manitoba's
justice system could have fought so hard, for so long, to put
an innocent man behind bars. They are questions that Sophonow
himself continues to ask.
"I thought
I was making a Good Samaritan call," Sophonow said about
the fateful tip he provided to the RCMP nearly 20 years ago.
"And it turned into a nightmare."
*******
Barbara Stoppel
lay face up on the bathroom floor of the Ideal Donut shop, her
left arm twisted in an unnatural angle behind her back.
There were
signs Stoppel, just 16 at the time, had fought for her life.
The bathroom was a mess. A trash can had been overturned and
blood was splattered on the wall and floor. A nine-inch string
of yellow-green twine was wrapped tightly around the pretty teenager's
neck.
When police
responded to the scene on the evening of December 23, 1981, Stoppel
was not breathing and her heart has stopped beating. Ambulance
attendants revived her at the scene but her injuries were severe.
The twine was twisted so tightly around her neck paramedics were
at first unable to see it. The motive for the crime was not entirely
clear. Police found $33 missing from the shop's cash register
but there was still $24 left in Stoppel's purse.
As the city
awoke on Christmas eve, the Stoppel family was gathered at the
St. Boniface General Hospital where they would maintain a six-day
vigil at the teenager's hospital bed. On December 29, after consenting
to donate her kidneys, Stoppel was taken off life support.
Winnipeggers
emerging from their holiday cocoon on the bright, crisp morning
of Boxing Day, 1981 opened their newspapers, eager to reconnect
with the outside world. A small article buried in a corner of
the front page of the Free Press alongside the Pope's
Christmas message detailed how the Stoppels spent the holiday
praying for their daughter's life.
Winnipeg was
no stranger to violent crime in 1981. Stoppel was the city's
20th murder victim that year but the circumstances surrounding
her death shocked and sickened the city. It became one of the
most talked about killings in Winnipeg's history.
Hours after
Stoppel died, police released a composite sketch of a man seen
by witnesses leaving the donut shop shortly before the body was
discovered. The next day the murderer's thin, mustachioed face
glared out from the front page of both city newspapers and was
broadcast on every Winnipeg television station.
The man in
the sketch wore glasses and a cowboy hat, something not typically
worn by locals, especially in the dead of winter. He was quickly
dubbed the Cowboy Killer. But despite the well-publicized sketch
and the dedicated efforts of nearly a dozen investigators, Stoppel's
killer proved elusive. The city's disgust and anxiety rose to
monumental proportions.
Twelve days
after Stoppel was strangled, more than 600 mourners -- mostly
grieving teenagers -- crammed into Norwood United Church for
her funeral. With public pressure to find the girl's killer mounting,
the minister officiating at the ceremony cautioned the congregation
against falling prey to the spirit of vigilantism. "One
of you might run into this man,'' said Reverend Keith Boughton.
"If you do, don't take the law into your own hand. I'm speaking
especially to the young people here. Call the police. Unobtrusively.
Remember, he has nothing more to lose."
While Boughton
tried to find the right words to explain how such the life of
a young and promising woman could be taken in such a brutal manner,
two homicide detectives -- desperate to find a clue to her murderer
- stood vigil at the back of the church, scanning the crowd for
a tall, thin killer who may have had a morbid desire to see his
victim buried.
The irony of
the whole mess was that police had, in fact, interviewed more
than once the man who would ultimately be considered the girl's
killer. And 20 years later he would emerge as the prime suspect
after Sophonow had been exonerated.
By the end
of January, 1982 the search for Stoppel's killer fell off the
front pages of Winnipeg newspapers and out of the public's consciousness.
Despite the reward and more than 1,000 tips, the police probe
was stalled.
But just as
suddenly as the story faded, it reemerged in mid-March with the
Winnipeg police triumphantly announcing they had finally caught
the Cowboy Killer in Vancouver. Two Winnipeg officers were dispatched
to the west coast to interrogate Sophonow. During this interview,
police denied Sophonow a lawyer, strip searched him and interrogated
him for more than four hours until he confessed to the Stoppel
murder. When it was over, the police could produce only 15 minutes
of transcribed notes as a record of the confession. The conversation
wasn't taped and Sophonow was never given the opportunity to
read or sign the notes the officers took. At the inquiry, Sophonow
said he never actually confessed.
After months
of chasing dead-end leads, police were so elated to have made
an arrest they didn't wait until they were back home with the
suspect to let the media know they had their man. "The foolish
police announced they had the killer from Vancouver,'' said Brodsky.
"They were now tied in to proving it."
******
The case against
Sophonow was built on the testimony of eyewitnesses, many of
whom who saw a tall, scruffy, moustashioed man turn the open
sign to closed in the doughnut shop and stride confidently into
the cold and blustery evening just before Stoppel's body was
found. The eyewitnesses would prove to be a strong foundation
for the police investigation, but that was not the only evidence
in play.
The origin
of the twine used to kill Stoppel, a piece of evidence that at
first blush seemed to be innocuous, proved to be the key which
would ultimately lock Thomas Sophonow in jail for a murder he
didn't commit.
In December,
1981 Const. Leonard Vince and his partner canvassed more than
100 Manitoba businesses, asking the owners if they recognized
the twine. Many said it looked like twine made at a Portage la
Prairie plant. Contacted by phone, the plant owners suggested
the police invest in a $100 chemical analysis to conclusively
determine the manufacturer. Vince recommended the test in his
report police instead relied on anecdotal information from another
manufacturer, leading them to believe the twine was made in B.C.
That information
was used by Winnipeg police Sgt. Bill VanderGraaf - a rough-and-tumble
cop who is now in charge of the major crimes division - to miraculously
connect Sophonow to the killing. In published accounts after
Sophonow's first trial, VanderGraaf dazzled reporters with a
tale of how on Valentine's day 1982, as police struggled valiantly
to find the killer, he recalled an August 1981 phone call from
the RCMP in B.C. about "an unrelated investigation"
involving Sophonow. What Vander Graaf did not mention, however,
was the RCMP inquiry was not about Sophonow, but the result of
information Sophonow had volunteered about a missing teenage
girl.
Two Mounties
from the Hope, B.C., detachment interviewed Sophonow in August
1981 after he spotted a poster for a missing teenager in a Hope
restaurant and believed she resembled a girl who had baby-sat
for a former girlfriend's child. The RCMP inquired with Winnipeg
police about the baby-sitter to see if it was the same girl.
In the course of that inquiry, Sophonow's name came up and, apparently,
so did his mug shot, which was taken from a 1975 property crime
conviction in Winnipeg.
When he was
told the twine used in the murder had come from the west coast
and was used exclusively by B.C. Hydro, VanderGraaf remembered
Sophonow lived in B.C. so he pulled the man's mug shot again.
Sophonow, a tall, gangly man with a droopy moustache and glasses,
fit the general description of the killer. The fact he was a
Vancouver resident with ties to Winnipeg led VanderGraaf to call
the Vancouver police and ask them to interview Sophonow and find
out where he was on December 23, 1981. The public would never
find out about Sophonow's good deed. Instead, VanderGraaf's carefully
crafted story became the backbone of a police campaign to paint
Sophonow as a career criminal capable of murder.
Defense lawyer
Rocky Pollack, a former Crown attorney who represented Sophonow
at his first trial, said when he first took on the case, he found
an almost unprecedented hostility from the police and prosecutors.
"The vehemence was omnipotent," said Pollack. "They
pursued this case with a vigor I had not seen."
On March 3,
1982 - after being asked by Winnipeg police to find and interview
Sophonow about his whereabouts at the time of the murder - Vancouver
police Det. Sgt. Mike Barnard arranged to meet with Sophonow
at the Vancouver public safety building. Both men characterize
that first meeting as a relaxed and casual affair, but even today,
that's about all they agree on. Sophonow said at the inquiry
he was never warned he was a suspect in the Stoppel murder. If
he had known, Sophonow said, he would have demanded to have a
lawyer present.
Sophonow also
said that after spending an hour detailing to Barnard his whereabouts
on the night of Stoppel's murder, only three brief questions
and answers are documented on the written statement. During the
three trials, the Crown frequently reminded the jury that Barnard's
notes recorded Sophonow saying he "could have been"
in the Ideal Donut shop the day of the murder. Sophonow maintains
he actually told Barnard he "couldn't have been" at
the scene of the crime. Sophonow does admit he didn't tell Barnard
- or the two Winnipeg detectives who would interview him a week
later - the whole truth about where he was and what he was doing
at the time a killer was at work in the bathroom of the Ideal
Donut shop on Goulet Street. In fact, Sophonow's complete alibi
for the night of the murder would not come out until well into
his first trial.
According to
Winnipeg police Sgt. Wade Wawryk and Sgt. Ed Paulishyn who travelled
to Vancouver to interview Sophonow in March, 1982, Sophonow not
only didn't provide them with a credible alibi during that first
meeting, but admitted to them he'd been in the Ideal Donut shop
at exactly the time Stoppel was killed. Wawryk and Paulishyn
have both testified Sophonow told them he was in Winnipeg the
night of the murder and that he said he "went driving around
and stopped for coffee where that chick got killed there."
Sophonow has admitted he may not have been completely truthful
with police about what he did during his visit to Winnipeg during
that initial interview. But he denies ever having told them he
was in the Ideal Donut shop. Indeed, that crucial piece of evidence
- if Sophonow did say it - was left out of Wawryk's notes despite
its ability to link Sophonow to the crime scene. During his emotional
testimony at the inquiry Sophonow described that first meeting
with Wawryk and Paulishyn as a nightmare. He said he was grilled
for hours and repeatedly accused of the brutal crime. For no
apparent reason, midway through the rapid fire questioning Sophonow
was ordered to strip and was subjected to a humiliating cavity
search by the two officers. By the end of the ordeal, Sophonow
said, he believed he actually had killed Stoppel and was reduced
to emotional rubble by the officers.
By May, 1982
the public was getting its first look at the case against Sophonow.
At his preliminary hearing in early summer, Sophonow offered
police the first glimpse of his alibi: Unable to see his daughter
or find old friends, Sophonow stopped at a Canadian Tire store
on Pembina Highway on his way out of the city on the night of
the murder to get his car repaired. While he waited, Sophonow
said he made two trips to a nearby Safeway store where he purchased
two lots of red mesh Christmas stockings stuffed with candy and
small toys. That's all the preliminary hearing judge heard and,
based largely on the testimony of numerous eyewitnesses who described
seeing the killer leave the donut shop, Sophonow was ordered
to stand trial for second-degree murder.
But there was
more to Sophonow's alibi. According to written statements he
gave his lawyer in the days following arrest, Sophonow said he
took the Christmas stockings to four Winnipeg hospitals to hand
them out in children's wards. This aspect of Sophonow's story
was not passed on to police or Crown attorneys until midway through
his first murder trial in November, 1982. Numerous times throughout
the inquiry, Sophonow and his lawyer were asked why they held
back the crucial information which may have secured an acquittal.
Pollack said
in, the relationship between defence lawyers and the Crown and
the police was marked by distrust and animosity. And the law
was different too. In 1982 - before the Charter of Rights and
Freedoms was enacted and before a landmark Supreme Court of Canada
ruling which ordered them to do so - the Crown was not required
to disclose much of their case to defence lawyers before they
went to trial. Defence lawyers routinely went to trial armed
with little more than a general outline of the crime and the
record of the accused. As a result, Pollack said, it was common
for defence lawyers to wait for the preliminary hearing to get
a taste of the Crown's case against their client. "In those
days the idea was not to give up information to the police that
could be spun in a different way,'' Pollack said. "There
was no certainty the investigation would be unbiased to (Sophonow).
Everyone involved in the prosecution believed he was the perpetrator."
Besides, Pollack said, the police had done their own investigation
and discovered that someone matching Sophonow's description had
not only purchased the stockings like Sophonow said, but had
delivered them to city hospitals. The inquiry heard that much
of this information was not provided to the Crown in charge of
the case or Sophonow's defence lawyers.
At his first
murder trial in November 1982, Sophonow took the stand and told
the judge and jury the full version of his alibi. The Crown countered
Sophonow's story with a case that was absent of any direct or
physical evidence. There were no hairs, fibres or fingerprints
tying him to the crime scene. A pair of woolen gloves believed
to have been worn by the murderer and found under the Norwood
Bridge, could not be tied to Sophonow.
The Crown built
its case almost entirely on eyewitnesses, who identified Sophonow
as the tall, scruffy man in the cowboy hat who left the Ideal
Donut shop the night Stoppel was murdered. Although understood
now to be an extremely frail form of evidence, in the early 1980s
it was heralded by prosecutors as hard proof of Sophonow's guilt.
However, it would come out during the inquiry that investigators
broke many of the rules of proper witness interviews and identification.
It all started
with the way police organized photo and line-up identifications.
Pollack confirmed that police showed the witnesses a flawed photo
array. As is often the case in wrongful convictions, Sophonow's
photo was different in appearance from the others in the mug
pack. Still, few eyewitnesses were able to identify Sophonow.
So, police then turned to a line-up.
Four key eyewitnesses
were shown a line-up which included Sophonow -- standing a full
head taller than anyone else in the line. Still, those witnesses
were unable to positively identify Sophonow and without a positive
I.D., the case was sunk. One of those witnesses, John Doerksen
-- a Christmas tree salesman who claimed he chased the killer
and wrestled with him on the Norwood Bridge after the attack
-- testified at the inquiry that when he was unable to pick Sophonow
out of the line-up the police officer with him told him which
one was Sophonow. "He said 'I'm talking to you and it's
not going to leave this room. I'm going to tell you who the guy
is' and he pointed to (Sophonow), " said Doerksen. That
officer, Sgt. David Shipman, took the stand at the inquiry and
insisted Doerksen was lying. But other witnesses who retold their
stories at the inquiry supported Doerksen's allegation that cops
were manipulating the witness identification process. Another
key witness, Norman Janower testified at the inquiry that Winnipeg
police Sgt. Ken Biener told him he'd picked the right guy when
he'd tentatively identified Sophonow. Both of Sophonow's defence
lawyers say they were given no indication from police or prosecutors
that the identifications had been tampered with.
And there was
still more manipulation The day after the line-up, Doerksen was
picked up by police for failure to pay an outstanding $107 fine
from a previous assault conviction. While in the PSB, Doerksen
was led past Sophonow in a hallway but was still unable to positively
identify him as the killer. He was then taken to adjoining cell
where he was again shown Sophonow. But even after the photo paks,
line-ups and orchestrated meetings Doerksen would tell police
he was only 90 per cent sure Sophonow was the man he saw. Defence
lawyers were never told of Doerksen's uncertainty. At trial,
Doerksen and the other shaky eyewitnesses developed a new found
confidence in their testimony; all said they were positive Sophonow
was the cowboy killer.
Even with positive
identifications from their witnesses, police had a more significant
problem to deal with: In the middle of his first trial, Sophonow
would introduce evidence supporting the claim that instead of
stalking Stoppel in the Ideal Donut shop, he was getting his
car fixed at the Canadian Tire on Pembina Highway and, later,
delivering Christmas stockings to sick children. His alibi, released
in bits and pieces throughout his first two trials, disputed
many of the eyewitnesses recollection of exactly when they saw
the cowboy killer.
Pollack said
that at Sophonow's preliminary hearing, eyewitnesses testified
they saw the cowboy killer leave the donut shop at around 8 p.m.
However, when witnesses and telephone records were produced to
show Sophonow could not have been at the donut shop at 8 p.m.,
the Crown witness testimony began to shift. For example, Lorraine
Janower testified at the first trial she first saw the Cowboy
Murderer leave the doughnut shop at 8 p.m. At the second trial,
she revised her testimony and had the suspect leave the shop
at 8:15 or 8:20 p.m. By the third trial, Janower's husband, Norman,
said it was actually closer to 8:40 p.m. By the third trial,
some eyewitnesses testified they saw Sophonow leave the shop
as late as 8:45 p.m., which conveniently allowed enough time
for Sophonow to make the trip from the Pembina Highway garage
to St. Boniface to murder Stoppel.
Another witness,
Barb Peasegood, was nursing a sick car and a hungry child at
the Pembina Highway Canadian Tire store in the early evening
of December 23, 1981. There, she and her daughter struck up a
conversation and shared some food with Sophonow who was also
waiting for his car to be repaired. In her initial statement
to police, Peasegood said she returned home at 8:30 p.m. and
Sophonow was still at the garage when she left. If Peasegood's
statement were true, Sophonow could not have possibly made the
trip to St. Boniface in time to kill Stoppel. But when she testified
at trial, Peasegood changed her story and claimed she returned
home at 7:45 p.m. - giving Sophonow plenty of time to commit
the crime.
Other witnesses
who supported Sophonow's alibi were either ignored, and never
revealed to the defence, or harassed by officers who aggressively
challenged their stories. Susan O'Rourke, a university student
working part-time as a clerk at Safeway told police a man fitting
Sophonow's description had purchased the stockings from her in
two installments and said they were going to sick children. Despite
the fact she was a key eyewitness who could possibly confirm
Sophonow's alibi, police never followed up on her testimony.
And Barb Marantz, a child-life coordinator at the St. Boniface
Hospital, testified at the inquiry she gave a statement to police
in 1982 about stockings being delivered to the children's ward
before Christmas 1981. She even located one of the red-mesh stockings
pinned to the bed post of a sick girl and handed it over to Sgt.
Ken Biener. Marantz's statement and the stocking, which fit the
description of the ones Sophonow said he bought and delivered,
both disappeared and were never seen by the jury or defence lawyers
at trial. Jeanine Sahulka, an LPN at the Misericordia Hospital,
told police she remembered a man handing out Christmas stockings
on the children's ward one night before Christmas in 1981. When
she gave her statement, Sahulka said investigators told her Sophonow
was guilty and the statement she gave was either a lie or a mistake.
Sahulka was never shown photos or a line-up involving Sophonow
to help her identify him.
Other witnesses
who could have helped Sophonow were literally scared away from
testifying. Erma Grabowsky declined to come forward until last
year to support Sophonow's alibi. Grabowsky told the inquiry
her daughter was having surgery at the Victoria General Hospital
on December 23, 1981, when she and her husband decided to leave
the hospital to get a bite to eat. As they left, they were greeted
at the elevator by a tall, scruffy man wearing boots and a cowboy
hat carrying two bags of Christmas stockings. Grabowsky testified
it was exactly 8:15 p.m. Scared she would be treated harshly
by police and prosecutors, Grabowsky said she kept her story
to herself.
One of the
most compelling alibi witnesses who suffered at the hands of
disbelieving investigators was Ester Navoa. The shy, diminutive
Misericordia Hospital nurse was interviewed by police early in
the original investigation. Navoa said she couldn't remember
a man delivering stockings to her ward. But Sophonow had testified
he not only delivered stockings to the pediatrics ward at the
Misericordia but that he gave a stocking to a nurse who had a
son named Philip. Navoa had a son by that name. After testifying
against Sophonow at his first two trials Navoa - plagued by her
conscience - told her boss how she'd lied about the man with
the stockings to avoid getting in trouble at work. Before the
third trial, Navoa told police she did remember the cowboy with
the stockings. Investigators accused Navoa of having been paid
off by the defence to change her story. She was never called
as a witness at the third trial and Sophonow's lawyer insists
he was never told about her stunning admission.
None of the
witnesses had a harder ride than Joan Barrett, a part-time ward
clerk from Victoria General Hospital. Barrett, a surprise defense
witness called near the end of the second trial, testified that
she talked to a man matching Sophonow's description at Victoria
hospital between 8:15 and 8:30 p.m. Although she was not positive
if it was Sophonow, she was "dead-sure" about the timing
of her conversation. Crown prosecutor George Dangerfield turned
to Sgt. Ken Biener and said loud enough for reporters covering
the trial, "Who the fuck is that?" Biener responded
by shrugging and whispering back, "I don't know." Twenty
years after the Stoppel murder, Barrett told the inquiry how
she was vilified in court and in the media for her decision to
testify and attacked on the stand as a charlatan. "I was
treated horribly by the police and the Crown and I want to forget
the whole thing."
But the Crown
prosecutors who pursued Sophonow through three trials were not
going to let their case rest solely on the shoulders of shaky
eyewitnesses. With an almost complete absence of physical evidence
tying Sophonow to the crime, Dangerfield turned to the prosecutor's
best friend -- the jailhouse informant.
Jailhouse informant
testimony is currently under siege from many quarters because
of its inherent unreliability. Inquiries into wrongful convictions
have heard that informants often lie about what they have overheard
or seen to gain favours within the prison system. In other cases,
they have been the willing dupes of police and crowns, repeating
evidence fed to them. Jailhouse informants have been involved
in so many wrongful convictions that jurisdictions across Canada
and the United States have limited their use.
A total of
three jailhouse informants would testify at Sophonow's trials.
However, there is evidence many more informants were approached
about testifying. Greg Brodsky said the Crown assembled a pool
of about 11 informants for possible use at his second and third
trials. Concerned about the quality of informants, sources familiar
with the case suggested George Dangerfield was so desperate to
build his case against Sophonow, he attempted to elicit jailhouse
testimony from Jerry Stolar and Barry Nielsen, former Winnipeg
police officers who were convicted of the first degree murder
of Paul Clear in 1981. Sophonow met Stolar and Nielsen in the
Winnipeg Remand Centre, and later did time with them at Prince
Albert Penitentiary in Saskatchewan. Winnipeg police officers
went to Prince Albert to try and convince the two former cops
to inform against Sophonow, but to no avail.
One informant
who did testify, Thomas Cheng, was forced to admit police had
swept aside more than two dozen charges of fraud, forgery, false
pretenses and possessing goods obtained by crime. At the time
of his arrest, he was also facing immigration charges for remaining
in Canada without a visa and seeking work illegally. However,
the jury would never here the details of Cheng's agreement with
the crown; the rules of evidence used at Sophonow's trials rendered
this information inadmissible.
Despite his
nefarious past and compromising relationship with the Crown,
Cheng told a remarkable tale of how he approached police of his
own accord, not because he wanted help with his charges, but
because he was disgusted by the Stoppel murder. He said Sophonow
killed Stoppel because she would not participate in a robbery
of the doughnut shop.
Adrian McQuade,
a jailhouse informant who testified against Sophonow at his third
trial, was heavily pressured by Winnipeg police into testifying
in 1985. McQuade, a well-known police informant, was arrested
in March 1982. Almost immediately he offered to go into the same
remand centre cell as Sophonow in a bid to collect evidence.
McQuade told police Sophonow admitted to being in Winnipeg at
the time of the murder but did not confess. Despite his eagerness,
McQuade had not been able to get the goods on Sophonow.
However the
inquiry heard that, before Sophonow's third trial, two police
officers who had regular contact with McQuade taped a conversation
with the man during which he offered information on upwards of
five different people - not including Sophonow. But with Sophonow's
third trial looming in 1985, police told McQuade they wanted
him to testify. When he balked, Biener said he told McQuade he
had a choice: Testify for the Crown or be declared a hostile
witness and have the taped conversation played at Sophonow's
trial. Knowing he couldn't afford to be exposed as a street rat,
McQuade was eventually pressured into testifying but the confession
he related was one he denied in 1982 as having ever received.
According to legal aid billing records submitted at the inquiry,
McQuade received $10,000 and had charges of rape against him
dropped as a result of his testimony against Sophonow.
None of the
snitches could match Douglas Martin. Martin - a Stony Mountain
inmate who worked with Sophonow in the prison kitchen - said
Sophonow told him he'd killed Stoppel but was going to beat the
charge.
"I was
very shocked,'' he told the jury at the third trial. "I
didn't believe he would be that stupid to tell me outright...I
felt it was my responsibility to tell what he had told me...I've
lied, I've cheated but I've never physically hurt anybody or
killed anybody. I don't agree with it and that's why I spoke
to police." What the jury didn't know was that Martin had
told similar stories at three other murder trials before Sophonow's.
In the past 20 years Martin has gone on to establish himself
as one of the most notorious informants in Canada. He has participated
in nine murder trials gaining himself the nickname "Father
Confessor."
Cheng's claim
that the motive for the murder was robbery would ultimately reveal
another critical inconsistency in the case against Sophonow:
The Crown theory on the motive for the murder kept changing.
At the first
trial, the Crown offered that robbery was the major motive based
primarily on the testimony of witnesses who claimed to have seen
the Cowboy Murderer remove $33 from the doughnut shop cash register
before leaving. And yet, a senselessness murder for such a small
amount of cash lost its impact on the jury as Sophonow's legal
odyssey unfolded. So, on the eve of jury deliberation in the
third and final trial, the Crown changed its theory.
Crown Stu Whitley,
who took over the third trial from Dangerfield, argued throughout
Sophonow's 1985 trial that a senseless robbery was behind the
murder. Whitley had even called RCMP Forensic Scientist Sterling
Bowman to the stand to testify there had been no signs of sexual
assault. But as the case neared conclusion, Whitley changed direction
and argued Barbara Stoppel had, in fact, been sexually assaulted.
In the previous trials, the Crown was unable to produce any physical
or circumstantial evidence to support this theory. Whitley ultimately
called upon Colin Dawes, a University of Manitoba dental biologist,
to flesh out his theory. Dawes testified that saliva found on
the body and floor of the bathroom could be evidence Stoppel
was forced to perform oral sex on her attacker.
At the inquiry,
Stoppel's brother Rick stunned the courtroom when he took the
stand and alleged that Whitley and Sgt. Ken Biener cooked up
the sexual assault theory knowing full well they did not have
any evidence to back it up. Rick Stoppel told the inquiry the
men approached him with the idea and said presenting the jury
with a sexual assault motive would secure a conviction against
Sophonow and make his life a living hell behind bars.
Whitley's last-minute
change of strategy seemed to work; the media and the jury were
shocked. However, Dawes' testimony was not a clear slam dunk.
Under cross examination, Dawes testified that he could not conclusively
say oral sex caused the excess saliva. In fact, Dawes said, people
who are extremely frightened suffer from a condition called "dry
mouth" where they produce less saliva than normal. Whitley
was unable to call another witness to support his sexual assault
theory.
Undeterred
by his own witness' ambiguity, Whitley arose for his closing
address and portrayed Sophonow as "a powder keg of frustration"
that erupted when he forced Stoppel to perform oral sex. When
she didn't satisfy him, he strangled her. Stretching Dawes evidence
beyond reasonable limits, he said the saliva found on her clothing
and on the floor "proves" oral sex took place.
With no direct
or physical evidence, and based almost entirely on the identification
of eyewitnesses whose testimony had been contaminated and altered
over the course of the three trials, Sophonow was once again
found guilty. This time, the jury would take 52 hours to reach
its verdict, a record deliberation at that time. And, it would
require the removal of Frances Kuntz, the lone juror who refused
to find Sophonow guilty. When she wouldn't agree with her 11
fellow jurors, the foreman sent a note to the judge accusing
Kuntz of mental instability. After a brief conversation with
both jurors, Justice Benjamin Hewak dismissed Kuntz and allowed
the other 11 jurors to proceed with their guilty verdict.
Not surprisingly,
Sophonow's challenge of that verdict would be embraced wholeheartedly
by the Manitoba Court of Appeal. In their review of the case,
the appeal justices found numerous mistakes in law, improper
interviewing techniques and the mishandling of witness identification.
In their written decision the appeal panel slammed Whitley for
attempting to introduce the sexual assault theory.
"Despite
Crown attempts to suggest otherwise there is not a particle of
evidence of sexual involvement between (Stoppel) and her assailant,"
they wrote.
The Appeal
Judges' criticism of the case foreshadowed the questions and
issues which would be raised at Sophonow's judicial inquiry some
15 years later.
"The evidence
of identification was thoroughly unreliable and that of opportunity
and motive weak,'' wrote Justice Kerr Twaddle. "I have concerns
as to the manner in which the accused was questioned by police.
There are so many instances of misdirection that I find the reasonableness
of the jury's verdict to be a somewhat hypothetical question."
Perhaps the
most troubling evidence which emerged at Sophonow's wrongful
conviction inquiry concerns Terry Arnold. After Winnipeg police
reopened Stoppel's murder case in 1999, Arnold has as the new
prime suspect. A career criminal, Arnold was recently granted
a new trial from his 1999 first-degree murder conviction for
the beating death of a B.C. teenager. Arnold has also spent time
in prison for a number of sexual assaults and is a suspect in
a string of unsolved murders across Canada and the States.
In 1981, Arnold
was a small-time hood living just steps away from the Ideal Donut
shop. Just days after the attack, police were told Arnold tried
to visit Stoppel as she lay dying in the hospital. And a week
later police received a tip that Arnold resembled the composite
drawing and should be interviewed as a possible suspect. The
inquiry heard that Arnold was interviewed at least four times
by Winnipeg police in the early days of the investigation. They
learned he had been in the Dominion Shopping Centre where the
Ideal Donut shop is located the day of the murder. Arnold admitted
he knew Stoppel and had a crush on her. He also told police he
owned and wore a cowboy hat and boots similar to those worn by
the killer.
On the night
of the murder, Arnold told police he'd accepted a ride downtown
with his mother's boyfriend and spent the rest of the evening
at a Portage Avenue Salisbury House. Staff at the Sal's told
police Arnold had been in the restaurant that night, but were
unable to say exactly when he got there. And on three occasions
during the investigation Arnold provided police with information
about possible suspects. He even offered to become an informant
against Sophonow. Police now concede that it appears Arnold was
attempting to direct attention away from himself as the possible
killer. Sgt. Ken Biener told the inquiry he suspects Arnold simply
slipped through the cracks while investigators were struggling
to keep up with the demands of the case.
*********
Over the last
two decades Thomas Sophonow has pursued his innocence with a
fierce and unwavering determination. He's written countless letters,
called numerous politicians and solicited the help of any media
outlet who would listen to his story. A full and public exoneration
followed by a judicial inquiry into what went wrong in his case
were his ultimate goals. Sophonow received all that in June,
2000 when Winnipeg Police Chief Jack Ewatski and Attorney General
Gord Mackintosh announced Sophonow was innocent and police were
pursuing another suspect. Sophonow's much anticipated judicial
inquiry was called the same day. But the process Sophonow had
hoped would bring him closure has proved to be long and emotionally
taxing.
Over the last
eight months retired Supreme Court of Canada Justice Peter Cory
has heard a tragic tale of how our adversarial justice system,
outdated police procedure, incompetence and the intense public
pressure to get a conviction can combine to produce a terrible
result.
In order to
uncover the truth, the inquiry has laid bare Sophonow's private
demons and personal struggles. Many days during the process Sophonow
was unable to remain in the courtroom - overcome by memories
the testimony recalled. At other times he slipped home to Vancouver
to the quiet protection of his wife and children. Doctors and
psychologists have said Sophonow's future is at best uncertain.
But they all agree he will be forever haunted by the three years
and nine months he spent in jail, wrongly convicted of Stoppel's
murder. And the pain of the 17 years he spent struggling to prove
his innocence will not easily be numbed.
For the Stoppel
family, the process has left more questions than answers. For
20 years they believed Sophonow was the man who killed Barbara.
They had a target for their hatred and rage. Then, almost overnight,
what they thought was real and true was turned upside down and
they were asked to view Sophonow not as a brutal killer but as
a living victim of the same crime which stole Barbara from them.
The inquiry process has also left the Stoppel family angry and
disillusioned at a justice system they once believed in. During
his final submissions to Cory, Stoppel lawyer Jay Prober said
the family was shocked and disgusted by the countless examples
of misconduct, tunnel vision and sloppiness which landed an innocent
man in jail and left the real killer free to roam the streets.
The inquiry
has brought back memories of a different era in policing when
cops weren't above using threats or fists to elicit a confession.
And the inquiry has turned the strict system of seniority within
the police service on its ear. Insiders say the original investigators
didn't take kindly to the fact that young, less experienced cops
were charged with reinvestigating Stoppel's murder when the case
was reopened in 1999. And the senior cops bristled when those
same young investigators suggested there were serious problems
with the investigation of the case. "The older guys just
wanted it left alone,'' one officer said. "Sophonow had
been acquitted and freed - they wondered why the (Winnipeg Police)
service was opening that can of worms."
It's clear
some of the old guard don't put much stock in last year's announcement
by Chief Jack Ewatski that Sophonow was not the man who killed
Stoppel. Numerous officers have been asked a similar question
when they took the stand: Whether or not they believe Sophonow
is innocent. Many have said they're still not sure. Biener, one
of the lead investigators on the original investigation, told
Sophonow during his testimony at the inquiry that while on a
balance of probabilities it looked like Sophonow wasn't the killer
he could not be sure. Paulishyn, too, said he was not fully convinced
Sophonow was not the real killer.
The Crown attorneys
who handled Sophonow's prosecution also found themselves at the
inquiry in the unusual position of having to defend their actions.
George Dangerfield, Stu Whitley and Gregg Lawlor each testified
they handled Sophonow's case the same way they would any other.
All three men explained that it was commonplace in the early
80s for the prosecution to withhold all but the barest of facts
and information from defence lawyers. Each said they prepared
the best case they could based on the facts and simply let the
juries make the final decision.
Now it's up
to retired Supreme Court of Canada Justice Peter Cory to decide
how much compensation Sophonow should receive as payment for
his ordeal. Sophonow's lawyer has asked for between $8.4 and
$10.2 million. The province has suggested $263,000. Somehow Cory
- who has a nationwide reputation for fairness and integrity
- will have to bridge that gap. Cory will also make recommendations
aimed at police and prosecutions departments in an effort to
ensure a similar tragedy does not happen again. It's a job he
does not take lightly.
"It's
only infrequently that the opportunity arises to do something
that may be of tremendous benefit to the administration of justice
and the community and our great Canada,'' Cory said on the first
day of hearings at the inquiry in October, 2000. "This may
be one of those opportunities."
Ban jailhouse
informants, Sophonow says
By JANE ARMSTRONG Globe
and Mail, November 06,2000
Vancouver
- Money
alone is no balm for the years of torment Thomas Sophonow says
he endured after police wrongfully targeted him for the murder
of a Winnipeg teenager.
Now he wants
changes to parts of the Canadian justice system that helped put
him behind bars for almost four years.
A day after
a retired Supreme Court judge recommended that he get $2.6-million
in compensation, Mr. Sophonow told reporters he believes the
use of jailhouse informants should be banned.
He also wants
Manitoba to pursue criminal charges against the police and Crown
attorneys who zeroed in on him for the murder of Barbara Stoppel,
a 16-year-old girl who was found strangled two days before Christmas,
1981, in the doughnut shop where she worked.
Mr. Sophonow
said police were under pressure to solve the grisly crime and
he was the unwitting victim of that agenda. Echoing the criticism
levelled by Mr. Justice Peter Cory in a report released Monday,
he said police used questionable interrogation techniques, and
prosecutors failed to disclose relevant evidence and relied on
unscrupulous jailhouse informants to convict him.
"Two months
after I was arrested, it was quite apparent ... that the police
were well aware that I wasn't guilty of the charge," Mr.
Sophonow told reporters Tuesday.
In his report,
Judge Cory urged that jailhouse informants be prohibited from
testifying except in rare circumstances, such as a kidnapping,
where they could tell police the whereabouts of a victim. But
Mr. Sophonow said they should be banned entirely because they
are unreliable.
A Manitoba
Court of Appeal set Mr. Sophonow free in 1985. However, it was
only last year that the province and police conceded he was innocent.
Tall, bespectacled
and soft-spoken, Mr. Sophonow hasn't changed much in appearance
since he was thrust into the spotlight in 1981. He told reporters
he would not answer questions about his time in jail or his personal
life. But he said not a day goes by when he doesn't think about
his ordeal with the Manitoba justice system.
Mr. Sophonow,
who married after his release from prison and has three children,
lives in a Vancouver suburb in a small, blue wood-frame house.
He said he
never lost hope that his name would be cleared, but he sometimes
believed it wouldn't happen in his lifetime.
Only a few
of the players have ever apologized, he added. One was a Winnipeg
police officer who led witnesses through the police lineup that
resulted in his arrest.
Mr. Sophonow
said the officer slipped into an elevator during a break in the
inquiry into his conviction. He had been trying to avoid the
man.
"I'm,
like, 'Oh my God what am I going to do,' right? So he apologized.
He said 'I'm sorry for everything' and just left it at that.
"There
was a warm feeling over me when he said that. I didn't say anything.
I didn't reject it. I didn't accept it."
In his report,
Judge Cory said a crucial witness, who said she was in the parking
lot near the doughnut shop and remembered a tall man there, did
not pick Mr. Sophonow out of the lineup.
But at his
preliminary hearing and three subsequent trials, she identified
him as the man she saw.
Mr. Sophonow
said no amount of money can undo the last years.
"The government
took everything away from me for four years. So, the way I feel
about it is that if I took everything away from the government,
that would probably begin to have a start to it."
He said he
would like to help others who have been wrongfully accused of
a crime, even if it's only to listen. He said he has been in
frequent contact with Shannon Murrin, who was acquitted of murdering
eight-year-old Mindy Tran in 2000.
"Until
you have someone to listen to you, then you really don't have
anything."
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