|
 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
<
< < Background
See also Gary
Staples from Hamilton | Hamilton
cops stall lawsuit
Chris McCullough
DNA Tests Clear Man in
Jail for Murder, New Trial Ordered
Jan. 13, 2000
HAMILTON (CP) - A man who has
spent nine years behind bars for the murder of a school teacher
was freed Wednesday as a result of fresh evidence that again
raises questions about the performance of Ontario's chief crime
lab.
Christopher McCullough walked
out of jail after the Ontario Court of Appeal overturned his
second-degree murder conviction and unanimously ordered a new
trial McCullough, 29, was sentenced to life in prison with no
parole for 18 years for the 1989 murder of Beverley Perrin, 55,
of Stoney Creek, Ont.
Perrin, who was apparently
sexually assaulted before being strangled with a nylon rope,
was last seen alive Feb. 13, 1989.
Her body was found in a farm
field two days later.
After a 15-month investigation,
Hamilton-Wentworth police arrested four men, including McCullough.
The other three
pleaded guilty to lesser charges and received sentences of up
to seven years in prison.
(It has
been brought to my attention that the above line is inaccurate.
Nick Nossey did not plead out to anything, was not found guilty
of anything and was, in fact, not involved. While this may seem
like a small error in a five year old report injusticebusters
know there can be serious repercussions on individuals when these
errors occur. In 1997 a local reporter published information
which identified Richard
Klassen
and the community he lived in without publishing his name which
was uner a court gag order. The report was construed by some
people as suggesting he was guilty. Shortly afterwards his home
was vandalized, his children were badly treated at school and
he subsequently moved to Manitoba. It took some serious pursuading
to get him to come back and fight for his civil claim.)
But several pieces of potentially
important forensic evidence now point to six other people.
Two items in particular were
overlooked "for reasons that have not been explained,"
said Justice Marc Rosenberg, who spoke on behalf of the three-member
panel.
The evidence consists of two
paper napkins found in a field near where Perrin's body was dumped,
which were originally reported by the Centre of Forensic Sciences
as containing "no significant findings."
However, testing done by the
centre last year showed that one of the napkins, in fact, was
"soaked with semen," while the other contained three
pubic hairs, the court noted in its judgment on Wednesday.
The DNA tests also show the
semen doesn't match that of McCullough or the three other men.
The appeal court should have
acquitted McCullough outright, said his mother Rossi McCullough.
"I'm disappointed they
didn't have the courage to do that," she said.
She also called for a public
inquiry into the allegations of police misconduct that have been
raised by two key Crown witnesses who have since recanted their
evidence and have admitted committing perjury nine years ago.
One of those witnesses was
a jailhouse informant, who said he received more than $8,000
in reward money and the benefits of a witness protection program
in exchange for his testimony.
The other was a woman who said
she lied in her trial testimony after police told her that her
husband's fingerprints were found in Perrin's car, even though
they had not been.
Her claim was startingly similar
to testimony about an alleged fingerprint offered by a Durham
Region police sergeant at the trial of Guy Paul Morin, whose
wrongful conviction led to a public inquiry.
The forensic centre has invested
considerable effort in improving its procedures after being heavily
criticized by a judicial inquiry for mistakes and coverups the
judge determined contributed to Morin's wrongful conviction.
Copyright © 2000 Toronto
Star, Hamilton Spectator. All rights reserved.
Ministry mum on Crown
who handled Perrin plea
Steve Buist, The Hamilton
Spectator, Feb 7, 2000
Ontario's Ministry of the Attorney
General is refusing to release any information about a 1991 investigation
into the conduct of the Crown attorney who handled a plea bargain
for a key figure in the Beverley Perrin murder trial.
Steven Wayne Clarke was allowed
to plead guilty to charges of forcible confinement and being
an accessory after the fact, in exchange for his testimony, which
falsely accused three other men of the 1989 abduction and murder
of the Stoney Creek school teacher.
One of those men was Chris
McCullough, who was eventually convicted of the murder. He served
almost nine years in prison until Ontario's Court of Appeal recently
ordered a new trial. The Crown is still deciding whether to retry
the case or simply withdraw the charges against McCullough.
The decision by the appeal
court once again puts the focus on how the case against McCullough
was handled by the prosecution, nine years after troubling questions
were first raised with the attorney general's office.
Brian Greenspan, the lawyer
who handled McCullough's appeal, is now calling for an independent
inquiry into the conduct of police and the province's Centre
of Forensic Sciences, which overlooked crucial evidence from
the crime scene.
Much of the evidence used to
convict McCullough came from Clarke, but his testimony has subsequently
been exposed as a patchwork of lies.
On Dec. 19, 1990, Crown attorney
David Carr and Clarke's defence lawyer, Beth Bromberg, presented
an agreed statement of facts to the judge portraying Clarke as
a reluctant accomplice in the crime on the night in question.
But one day earlier, at a preliminary
hearing for the other three men, Clarke had testified that he
had played a much more active role -- that he had taken the lead
in abducting Perrin, sexually fondled her, beat her, grabbed
a rope from the trunk of the car and held her down while she
was tied up.
At one point, Clarke was asked
what happened.
"Oh, there was some kicking,
punching," replied Clarke.
Who was being kicked and punched?
"Mrs. Perrin," he
answered.
And who was doing the kicking
and the punching, Clarke was then asked.
"All of us."
Later, Clarke was cross-examined
by Dean Paquette, McCullough's lawyer. Did anyone else touch
Perrin's breasts?, Paquette asked.
"Yes, I did," said
Clarke.
"So you sexually assaulted
her?" Paquette asked.
"In so many words, yes,"
Clarke said.
None of this testimony was
part of Carr's submission at Clarke's brief trial the next day.
That version made no mention of Clarke's sexual assault, no mention
that he was involved in the beating and no mention that he grabbed
the rope from the trunk.
Instead, the Crown attorney
said that Clarke leaned against the car and only watched, and
at one point even told McCullough, "That's enough."
Carr was not the Crown attorney
who handled the preliminary hearing, although he did make a point
of telling the judge, "I just want to make it clear on the
record that the facts I am placing before the court were given
in evidence for the last two days by Mr. Clarke at a preliminary
inquiry."
It raises the serious question
of why the Crown had failed to include these important admissions,
and whether the court may have been misled about Clarke's involvement
in the crime.
Rob Austin, then The Spectator's
editor, and Brian Rogers, the newspaper's lawyer, complained
to the attorney general's office about the glaring discrepancies.
On April 10, 1991, they met
with Brian Trafford, who was the ministry's director of criminal
prosecutions at the time, and expressed their concerns on behalf
of the news- paper. Trafford promised to look into the matter
promptly.
Trafford met with Carr and
Jim Treleaven, then the regional director of Crown attorneys
in Hamilton. Trafford then notified The Spectator on April 12
that when a written report was submitted, he would decide, in
consultation with Treleaven, whether it was appropriate to disclose
it to The Spectator.
"I do feel that it is
fair and appropriate for me to tell you," Trafford wrote
in a letter to Rogers, "that you and your client do not
have all the material information that is necessary to properly
assess the conduct of the Crown attorneys in this and the related
cases."
That's the last The Spectator
has ever heard of the investigation, although not for lack of
trying.
"We never got the written
report," said Austin.
"Brian (Rogers) and myself
tried to contact Trafford several times after that and Trafford
was never available to speak to us.
"We never heard from him
again and he just wouldn't take our calls."
A spokesman for Murray Segal,
the assistant deputy attorney general, said the province could
not comment because the matter is still before the court.
"The Court of Appeal has
recently ordered a new trial in this case, and the Crown and
police are considering their respective positions," said
Brendan Crawley, a spokesman for the attorney general's ministry.
"In light of that ruling, it would be inappropriate for
us to make any comment on this case."
The attorney general's office
has even refused to indicate whether a full investigation was
ever conducted and whether a written report was ever submitted.
"Mr. Trafford assured
us in our meeting that he would look into the matter," said
Rogers. "Presumably, he did that. But we don't know anything
more today than we knew then as to why the Crown attorney did
what he did."
Trafford is now a judge in
Toronto. He is on an extended vacation and could not be reached
for comment.
Carr is also a judge, serving
in Waterloo region. He refused to comment.
"I just can't talk to
you about it," said Carr. "You'll have to talk to someone
else about this."
Treleaven vaguely recalls meeting
with Trafford and Carr about the issue. He also noted that it
would have been Trafford's responsibility to write the report.
"I don't remember what
was said and I don't remember what, if anything, was done afterwards,"
said Treleaven.
"I just assume from knowing
Trafford that he would not have left it hanging. If he said he
was going to look into something, he did."
Roslyn McCullough, Chris' mother,
wrote a letter to the Law Society of Upper Canada in November
1992, asking the legal regulatory body to investigate many of
the same issues about the Crown's conduct that had been raised
by The Spectator.
Five months later, the law
society responded by stating that the matter was not within its
jurisdiction and no further action was warranted.
The written explanation seems
both troubling and surprising. Since Clarke was arraigned only
on charges of unlawful confinement and being an accessory after
the fact, that would have been the only evidence Carr was obliged
to include.
"Evidence regarding an
admitted sexual assault would not be relevant to either of those
charges," according to the law society's letter, "and
therefore would not be appropriate to include in an agreed statement
of fact relating to the foregoing charges."
Rogers pointed out that even
in the case of a plea bargain, the agreed statement of facts
must accurately reflect the events surrounding the crime.
"All lawyers have a duty
to the court to ensure that it's properly informed and not misled,"
said Rogers. "A Crown attorney has the added duty of having
to represent the public interest."
One man holds key to
murder case
Barbara Brown, Justice Reporter
The Spectator
Steven Wayne Clarke's own mother
says she hasn't seen the man in seven years and hopes she never
does again.
"He's my son, and I don't
know whether it's cruel or not, but I can't help but wish he
was behind bars," said Kathryn Clarke, 72, who lives in
eastern Ontario. "I hope they do something with him so he
can't hurt anyone else... because I know how possible that is."
Her 47-year-old son is at the
centre of one of this region's most contentious and controversial
murder cases of the past decade or so.
If Hamilton-Wentworth police
know where the unemployed drifter is today, they're not saying.
Deputy Chief Bruce Elwood would only say Clarke -- whose evidence
led to the arrests of three men for the 1989 murder of school
teacher Beverley Perrin -- was not placed in the witness protection
and relocation program.
Clarke, who was then 37, gave
police a series of statements in 1990 that initially attempted
to incriminate six different people of involvement, before eventually
settling on Nick Nossey, then 21, along with Chris McCullough,
22, and Terry Pearce, 23.
Clarke was in jail for credit-card
fraud at the time of giving police statements about the Perrin
killing. He later pleaded guilty to lesser charges of forcible
confinement and being an accessory after the fact of murder.
He claimed to have been only
a passive participant and, in exchange for a lenient four-year
sentence, agreed to testify against his supposed accomplices.
But Clarke's story suffered a blow when two other Crown witnesses
later recanted their trial testimony. Last month the Ontario
Court of Appeal ordered a new trial for one of the men convicted
of second-degree murder in large part on Clarke's evidence.
Chris McCullough, now 30, had
been incarcerated almost nine years before being released on
bail in March 1999 pending the outcome of his appeal.
The appeal court did not acquit
McCullough outright but in allowing his appeal, expressed concern
about whether a new trial was justified or even logistically
possible.
"It will be for Crown
counsel to decide whether it's in the interests of justice to
proceed with a new trial, given the time that has elapsed and
the substantial damage that has been done to the credibility
of important Crown witnesses," said the judgment by Mr.
Justice Marc Rosenberg.
Discussions now taking place
between police, the local Crown attorney's office and senior
staff with the Ontario Ministry of the Attorney General will
determine if the Crown will proceed with a new trial. The timing
of that decision is not yet known, but if they opt try McCullough
again, prosecutors will no doubt have to find Clarke and bring
him back to testify.
The Crown's case, however,
has almost entirely unravelled since Clarke took the witness
stand in November 1991.
Clarke endured four days of
gruelling cross-examination by McCullough's lawyer Dean Paquette.
But in the end, he delivered his part of the plea bargain, and
his evidence was enough to help convict McCullough even though
the jury acquitted his co-accused Nossey.
But two Crown witnesses who
served to corroborate Clarke's version of events at the original
trial have since confessed their testimony was all lies. The
teenaged girlfriend of Terry Pearce, who was tried separately
from McCullough and Nossey, maintains she caved in under intense
pressure from police and gave a statement that fit their theory
(and Clarke's version) of the crime.
The other Crown witness, a
notorious jailhouse informant, now says he callously fabricated
statements and committed perjury on the understanding police
would help him get a chunk of the $30,000 reward money.
DNA tests done by the Centre
of Forensic Sciences late last year have only cast more doubt
on the physical evidence and on Clarke's testimony.
The witnesses' recantations
leave Clarke as the only witness not to deny being at the crime
scene. They mean Clarke's evidence as to what happened to 55-year-old
Perrin on Feb. 13, 1989 -- the night the wife and mother of four
disappeared -- now rides almost solely on his credibility.
What do we know about Clarke?
Clarke's mother, who has not
seen him in many years, said in a recent interview she believes
he's capable of killing someone.
"That man, from my experience,
could very well have done this, and he would blame it on anybody
else to get the blame off of him."
Kathryn Clarke was not contacted
by Crown or the defence back in 1990, but said she would not
have hesitated to bluntly tell them about her son.
She said as a teenager, he
once flew into a rage and nearly killed her.
"I don't know what caused
it, but there was long butcher knife on the table... And I don't
know what I said to him, but he had me up against the wall with
one hand pinned behind my back. He was holding on to the other
one and he grabbed that knife and held it to my stomach -- so
that I could feel the point.
"And I knew if I made
a sound, because my husband worked nights and was upstairs sleeping...
I knew if I made a sound, I'd be gone.
" So I just kept talking
more or less in a monotone and kept talking quietly until he
finally threw the knife aside and went out the door."
Bob Moynes, of Cobourg, said
he hasn't seen his half-brother since 1993 when Clarke's father
died. Clarke's mother and father had been separated 22 years.
Moynes, who was executor of
his stepfather's estate, said he gave Clarke his share of the
small inheritance and then washed his hands of him.
"He's a pathological liar
who has never told the truth in his entire life unless it was
in his favour and suited his own purposes," said Moynes.
Clarke was born in Cobourg,
Ont. on Oct. 26, 1952. In addition to his older half-brother,
he has a younger sister who, according to their mother, will
have nothing to do with him. "Whatever he did to her when
she was young, she won't talk about it. But she won't have him
around -- no way," said the mother.
His behavioural problems began
when Clarke was six or seven years old. Doctors determined he
was of average intelligence, but suspected the boy's angry outbursts
might be caused by frontal-lobe epilepsy. Clarke did poorly in
elementary school, repeating almost every grade and never graduating
from grade 8.
His mother tried repeatedly
to get psychiatric help for him, but Clarke continued to have
regular episodes of uncontrolled anger, hostility and violence
toward family and other children.
His mother described her son
as being either "mean and cantankerous" or suicidal
during these spells. He would spit obscenities at her and threaten
to harm people. He once threatened his grandmother with a knife
and beat his mother up on more than one occasion.
His mother told doctors the
episodes occurred about once or twice a month and in between
the boy would be pleasant and even-tempered.
During pre-trial motions at
the 1991 murder trial, the court heard about an incident recorded
in the clinical notes of a psychiatrist who had seen the 16-year-old
Clarke 22 years earlier. The doctor noted: "During one of
these spells, Steven was seen in the park with a child on the
ground and appeared to be strangling him. The child was younger
and was unconscious and if his older brother hadn't come along,
the mother (Mrs. Clarke) fears the child would have died."
Clarke's mother said she no
longer remembers this incident. But at the trial, McCullough's
lawyer tried to have psychiatric records admitted into evidence.
The defence argued they were relevant because the slain teacher
also had been strangled. Justice Paul Philp ruled the evidence
inadmissible, however, because the Crown witness was then 39
and the evidence of Clarke previously strangling someone was
too dated to show a predisposition to strangle someone.
Clarke was committed to Kingston
Psychiatric Hospital for a 60-day assessment in 1969 after a
joy ride resulted in the family car being totalled.
The clinical notes of another
attending psychiatrist revealed Clarke's mother wasn't exaggerating
about his propensity for violent outbursts.
"In my office... this
boy displayed an instantaneous rage, shouted loudly at me and
told me to 'shut up,' even though I was just trying to clarify
a point," noted the doctor. "He threatened me and then
refused to leave the room as I suggested he might do.
"At this time his face
was very suffused, his fists were clenched and with white knuckles,
and I must say, I was frightened even though this is one of the
few times I ever have been in my office."
Clarke arrived in Hamilton
in the mid-1980s after drifting around aimlessly for several
years. He began eking out a miserable living by breaking into
cars and stealing whatever he could find.
He was by this time a man with
a history of psychiatric problems and alcoholism. He'd never
held a real job and had a petty criminal record for thefts and
drug possession.
Not much is known about Clarke's
early days in Hamilton, except that sometime about 1985 the then
33-year-old drifter hung out for a while with a group of teenagers,
who frequented an abandoned underground garage on Grandville
Avenue where they drank beer and did drugs.
It appears Clarke drew on his
memories and names and associations from this period to fabricate
statements five years later and invent an alternative scenario
for how Perrin was killed. McCullough, who knew Clarke casually
back then, testified at his trial that he had not associated
with Clarke in nearly five years.
At the time of Perrin's murder,
Clarke had moved back to the Grandville area and was staying
rent-free with a couple of friends who took pity on him. The
apartment building was just down the street from where Perrin's
car would later be found three days after her murder. One of
his two male roommates testified Clarke went on nightly forays
to break and enter automobiles and steal wallets or anything
of value.
Homicide detectives first questioned
Clarke about Perrin's murder 13 months after her body was found.
Two detectives caught up with him in the in-custody area at Hamilton's
old provincial courts. Clarke had just been sentenced for using
stolen credit cards. The detectives suggested to Clarke that
his friend, Terry Pearce, was involved in the killing of Perrin.
Clarke, who initially denied
any direct knowledge of the killing, agreed at once with the
officers' suggestion concerning Pearce. He said his friend Pearce
told him he was the driver, that the killing started out as just
a joy ride but escalated out of control.
Over the next three months,
police returned to the jail again and again to re-interview Clarke
and confront him about some lie or deception.
At the preliminary hearing
in December 1990 and again at the 1991 trial of McCullough and
Nossey, the Crown's star witness would be be caught in literally
hundreds of lies, all of which he candidly admitted.
Even when it was unnecessary,
Clarke could not resist the urge to lie. His lawyer told court
her client advised her he was a former graphic artist who had
gone to Queen's University on a scholarship during the 1970s.
Nothing could have been further from the truth.
The appeal court's decision
last month to order a new trial for McCullough was based on two
areas of fresh evidence, the recantation of a jailhouse witness
and new DNA evidence which surfaced last year after the Crown
ordered the physical evidence gathered at the crime scene to
be re-tested.
Among other things, the new
tests revealed a facial tissue, which had been dismissed by forensic
biologists at the time as insignificant, was in fact heavily
stained with semen.
Another tissue contained several
pubic hairs, and neither the semen nor the hairs could be linked
to any of the four men tried for Perrin's murder.
DNA analysis now reveals a
single unknown male -- someone who has so far never been identified
as a participant in the crime -- was the source of that hair
and semen.
Clarke testified that McCullough
raped the victim for 10 or 15 minutes before wrapping a length
of rope around her neck and strangling her.
"If these napkins are
connected to the sexual assault and the killing, it is obvious
that Clarke is lying about who sexually assaulted the victim,"
noted the appeal court.
"Obviously, if Clarke
had been faced at trial with this evidence, the jury would have
had further reason to doubt that he was telling the truth."
The tissues were found near
Perrin's semi-clothed body in an open farm field off Tapleytown
Road. Significantly, her DNA was not found on either facial tissue.
There is nothing, therefore, to directly link the new evidence
to Perrin's murder, other than their proximity to her body.
Murder evidence ignored
BARBARA BROWN, Justice Reporter
The Hamilton Spectator,
June 17, 2000
Prosecutors withdrew a second-degree
murder charge yesterday against Chris McCullough, who spent nearly
nine years in prison for the slaying of Tapleytown School teacher
Beverley Perrin.
The decision comes a mere week
after Ontario Provincial Police interviewed a Hamilton man who
says important evidence he offered to police within days of the
Feb. 13, 1989 murder was ignored and never used at McCullough's
1991 trial. And police notebooks or statements pertaining to
the interview appear to have since vanished.
The missing witness statement
of electrician David Staples is the latest development in a case
marked by questionable police tactics, tunnel vision and the
use of unreliable jailhouse informants. Yesterday, McCullough's
lawyer Dean Paquette said it's time for a public inquiry.
Paquette said the problems
with this decade-old case are equally, if not more troubling,
than those raised during the inquiry into the wrongful conviction
of Guy Paul Morin in 1997.
"This has combinations
of both Morin and (Karla) Homolka in terms of deals that were
struck. The public ought to be just as outraged here as they
were with Homolka.
"The only form of inquiry
in which I would have faith would be a judicial inquiry,"
said Paquette. He wants a judge with powers to subpoena witnesses
to conduct an independent investigation.
McCullough, 31, was charged,
along with three other men, in the abduction, rape and murder
of Perrin, a 55-year-old wife and mother. He was sentenced to
life imprisonment with no chance of parole for 18 years.
Last January, the Ontario Court
of Appeal overturned the conviction and ordered a new trial for
McCullough.
In a carefully worded statement
yesterday, Hamilton Crown Attorney Tim Power told Superior Court
Justice Alan Whitten there will not
be another trial because there is "no
reasonable prospect
of conviction."
Two important Crown witnesses
at McCullough's 1991 murder trial have since recanted their testimony
and maintain they were either coerced by police or offered inducements
before providing false statements incriminating McCullough.
A notorious jailhouse informant,
who has been used by police in at least three other homicide
investigations, told the Ontario Court of Appeal he received
more than $8,000 in reward money for his perjured testimony in
the case. His false evidence also earned him a spot in the witness
protection and relocation program, along with about $17,000 more
in rent and living expenses.
The man known only as "Jake"
said he asked jail guards to place him in McCullough's cell at
the Barton Street jail. He then hounded and exploited the frightened
and angry 22-year-old McCullough. He finally entrapped him in
a charge of counselling an undercover police officer to kill
the Crown's star witness.
McCullough shamefully admitted
this act before the jury at his trial. He pleaded guilty to the
counselling charge and was sentenced to 10 years concurrent to
his life sentence on the murder conviction.
Power did not equate the withdrawal
of the charge yesterday with a vindication and there was no suggestion
of an apology for McCullough from either the court or the Crown.
McCullough, who has been on
bail since February 1999 pending the outcome of his appeal, said:
"I'm happy it's over for me to some degree. But it's not
really not over. There are still too many questions to be answered.
Not just for myself, but for the Perrin family and the public.
Everybody deserves to know what really happened here."
The Perrin killing was the
most difficult type to solve because it involved a random abduction
that left police with no obvious motive, no immediate suspects
and no physical evidence that pointed to anyone in particular.
It was a disturbing and senseless
crime that shocked the community and put police under immense
pressure to solve the crime.
The first real break in the
case came in the person of Steven Wayne Clarke, a 36-year-old
petty thief and drifter. Clarke, unfortunately, led the investigation
hopelessly off track through a series of deceptive and self-serving
statements aimed at incriminating others and deflecting suspicion
from himself.
Clarke implicated at least
six men in the murder, but eventually settled on McCullough,
then 22, Nick Nossey, 21, and Terry Pearce, 23.
The three younger men were
all charged with murder. Clarke received a light four-year sentence
and in exchange for testifying against the others, was permitted
to plead guilty to forcible confinement and being an accessory
after the fact of murder.
Nossey was found not guilty
by the jury that convicted McCullough. Pearce pleaded guilty
to manslaughter in June 1992. He now says he succumbed to intense
psychological pressure and gave a false confession implicating
himself and others.
His 16-year-old girlfriend
also gave police a statement supporting her boyfriend's confession.
Tammy Waltham believed it would save Pearce from being wrongfully
charged with first-degree murder. In February 1992, Waltham publicly
recanted her trial testimony in a front-page story in The Spectator.
She maintains to this day that she never saw Perrin in the company
of McCullough, Nossey or Pearce on the night of Feb. 13, 1989.
And now there is the perplexing
situation involving an independent witness who says he saw a
suspicious man lurking near the scene where Beverley Perrin's
body would be found one day later.
Staples, a 42-year-old father
of two, told The Spectator yesterday he was returning home from
a welding course on that night 11 years ago. He was driving along
Tapleytown Road when he encountered a hatchback car stopped at
the head of a lane with its doors open and a man standing outside.
The man with a moustache and dark hair was examining the underside
of the car.
Staples was going to stop and
offer help, but the man looked directly at him and he decided
against it. "Something did not feel right, so I drove on."
Bothered for reasons he can't
quite explain, Staples scratched out four numbers from the licence
plate and posted it on his fridge at home. He also told his wife
about the strange man on the road.
When the news of Perrin's murder
broke, Staples contacted Hamilton-Wentworth police to tell them
what he had seen. He says he was interviewed by Staff Sergeant
Gary Clue, who was heading up the homicide investigation, and
a second officer, whose name he no longer recalls, who took notes
during their hour-long conversation.
Staples said he asked the officers
how important his information was. "He (Clue) said I was
the seventh person he'd spoken to and I was at the top."
He said Clue never re-interviewed
him and did not return a telephone message he left during the
course of the 1991 murder trial.
Paquette, who also interviewed
Staples, said the man's witness statement and the officer's notebook
were never disclosed to the defence.
"He saw a photograph of
Chris (McCullough) in the paper and he clearly says Chris was
not the guy he saw."
Paquette said the Crown attorney's
office advised him it has received no information to confirm
the interview actually took place. He was told Clue maintained
he turned all his notebooks in when he retired. But members of
the police service said they cannot find them.
Police Chief Ken Robertson
said he had no knowledge of the controversy, but assured the
service will look into the matter. "Our commitment is if
there is new evidence, if there is things that haven't been looked
at, we'll certainly conduct an investigation."
Paquette wants questions answered.
"Was this evidence relevant to the trial? Why wasn't it
disclosed if it existed? And thirdly, what is the situation now.
If it exists, where is it now?"
DNA tests clear man in
jail for murder : Laboratory drew blank initially but now new
evidence turns up
By Tracey Tyler , Toronto Star Legal Affairs Reporter,
January 13, 2000
A man who has spent nine years
in prison for the murder of a Hamilton-area teacher has been
freed as a result of fresh evidence that raises disturbing questions
about the performance of Ontario's chief crime laboratory.
 Christopher
McCullough walked out of a Hamilton jail yesterday moments after
the Ontario Court of Appeal overturned his second-degree murder
conviction and unanimously ordered a new trial.
McCullough, 29, was sentenced
after a 1991 trial to life imprisonment with no chance of parole
for 18 years for the Feb. 13, 1989 sex slaying of Beverly Ann
Perrin, 55, a Stoney Creek elementary school teacher who was
abducted and strangled after visiting her husband, Gene, in St.
Joseph's Hospital in Hamilton.
Three other men pleaded guilty
to lesser charges and received sentences of up to seven years
in prison.
But several pieces of potentially
important forensic evidence now point to six other people. Two
items, in particular, were overlooked ``for reasons that have
not been explained,'' Mr. Justice Marc Rosenberg said speaking
for the three-member panel yesterday.
The other judges sitting on
the appeal were Chief Justice Roy McMurtry and Mr. Justice Michael
Moldaver.
The evidence consists of two
paper napkins found in a field near where Perrin's body was dumped,
which were originally reported by the Centre of Forensic Sciences
as containing ``no significant findings.''
Testing done by the centre
last year, however, shows that one of them, in fact, was ``soaked
with semen,'' while the other contained three pubic hairs, the
court noted in its judgment yesterday.
The DNA tests also show the
semen does not match that of McCullough or the three other men.
The test results came after
a jailhouse informant recanted his evidence. The man was a key
prosecution witness and the most important of six snitches who
testified at the trial.
The man, known only as ``D,''
received more than $8,000 in reward money and the benefits of
a witness protection program in exchange for testifying.
He told the appeal court he
completely fabricated his story that McCullough confessed.
He wasn't the only prosecution
witness to recant.
Tammy Waltham, the common-law
wife of one of McCullough's co-accused, Terry Pearce, said she
lied in her trial testimony after police told her that her husband's
fingerprints were found in Perrin's car, even though they had
not been.
Her claim was startlingly similar
to testimony about an alleged fingerprint offered by a Durham
Region police sergeant at the trial of Guy Paul Morin, whose
wrongful conviction in 1992 led to a public inquiry. The police
in that case also made false claims of finding a fingerprint
to pressure Morin into confessing.
Morin was convicted of murdering
his 9-year-old neighbor Christine Jessop after a trial that relied
on forensic evidence that was actually generated in the crime
lab. Fibres that purported to link him to the crime were actually
lab contamination.
The centre has invested considerable
effort in improving its procedures after being heavily criticized
by a judicial inquiry for mistakes and coverups that contributed
to Morin's wrongful conviction.
The centre vowed to review
80 old criminal cases in the wake of a 1998 report by retired
Quebec judge Fred Kaufman into the Morin case but it is unclear
if McCullough's was among them.
The forensic evidence, meanwhile,
is not conclusive but is ``very important,'' Rosenberg said,
adding that it undermines testimony from another key prosecution
witness, Steven Clarke, one of the four co-accused, who claimed
to have watched McCullough raping Perrin.
The other new forensic evidence
includes:
Two pubic hairs found on the
second napkin at the scene. A partial DNA profile shows they
come from two people, at least one of them a man. The person
who was the source of the semen cannot be excluded as the source
of one of the pubic hairs. Perrin, however, has been eliminated
as a source of the hair.
Body swabs taken from Perrin.
At the time of the trial, the centre reported that no semen was
detected on the swabs. But further investigation this year found
that a ``very small amount`` of sperm and two spermatazoa heads
had been found on the swabs, which cannot be subjected to DNA
tests with the technology available, the court said.
Cigarette butts found in Perrin's
car. Clarke testified that he smoked a Player's Light before
the murder, the same brand as some in the car. DNA tests now
eliminate all four of the original suspects as having smoked
any of the cigarettes. The tests also point away from the person
who left the semen.
Strands of hair found in the
car were also subjected to DNA testing last year and point to
another, unknown man.
While the court has ordered
a new trial, Rosenberg said it will be for the crown to decide
``whether it is in the interests of justice'' to proceed with
a new trial given the time that has elapsed.
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