Toronto Lawyer’s $2 Million Dollar Fraud Conviction Upheld

Yesterday the Ontario Court of Appeal dismissed Toronto corporate lawyer, Remy Boghossian’s appeal from his 2015 conviction for an almost $2 million dollar fraud on the Royal Bank of Canada. (R. v. Boghossian, 2017 ONCA 870 CanLII)

The scam involved Mr. Boghossian and two co-accused acquiring a forged TD Canada Trust bank draft for $1,895,751 in February 2011 from an unidentified bank insider at the Mississauga branch of the TD bank. The funds were then deposited into Mr. Boghossian’s trust account, whereafter he purchased, in two separate transactions, Australian-minted gold bullion from a company in Montreal.

Mr. Boghossian’s lawyer argued that his client purchased the gold on behalf of a client, Omar Ali, who was a real estate developer going through a divorce who wanted to hide the money from his wife. He asserted that his client was a victim of the scam and had been duped into participating. The trial judge found that Mr. Ali did not exist and was created to advance the fraud. He held that a strong circumstantial case had been established and that the three accused acted together to knowingly defraud the Royal Bank by presenting a forged TD bank draft.

The court heard that Boghossian’s two accomplices tried to sell some of the gold bars, but a wary gold dealer recognized the “kangaroo” logo on the bars and contacted the police.

What remains a mystery is who the insider at the TD Bank is and where the gold bars are now. Media reports indicate that the police have discontinued their investigation of these two matters.

Mr. Boghossian also appealed his 3 1/2 year sentence, arguing that as his co-accused only received 3 years each, his sentence should be reduced to three years. The Court of Appeal dismissed the sentence appeal saying:

“In our view, the extra six months awarded the appellant does not raise parity concerns. The appellant was a lawyer. His status as a lawyer and the role his status as a lawyer played in the commission of the offence justified treating this as an aggravating factor, warranting a somewhat higher sentence for the appellant. We see no error in the sentence imposed.”

It is expected that the Law Society of Ontario will disbar Mr. Boghossian.

.

Trial Debacle Leads to Freedom for Pedophile From Nova Scotia

Despite what you hear or read, you can’t blame Ernest MacIntosh for the Supreme Court of Canada’s decision to quash his convictions for sex charges involving young boys in the 1970’s. (R. v. MacIntosh 2013 SCC 23)

A successful Cape Breton businessman, MacIntosh was transferred by his employer to Singapore and then to India in 1994 where he remained until his extradition back to Canada in 2007 to face numerous counts of indecent assault and gross indecency charges stemming from allegations made by six young men in 1995.

When MacIntosh left Canada in 1994 there were no charges against him and he had no idea that charges may be laid. Over the years he travelled between India and Canada, renewing his Canadian passport from time to time as required by Canadian law.

He was not hiding from the law. Canadian authorities knew where he lived in New Delhi and had his phone number. Coincidentally, one of his neighbours was an RCMP officer who worked as a liaison in India.

MacIntosh finally became aware of two criminal charges in 1997 but was led to believe by Canada Passport authorities that the charges were not proceeding. He heard nothing more until nine years later, despite the fact that in 2001 fifteen more charges were brought against him and he renewed his passport in 2002. The Crown acknowledged their decision to extradite Mr. MacIntosh in 1997 but as you will read, did nothing about it for nine years.

In 2006 the Crown filed extradition proceedings in India, some 11 years after the first charges were laid and five years after the second group of charges were filed against him.

Mr. MacIntosh was brought back to Canada in June 2007 but did not receive complete mandatory disclosure from the Crown until eleven months later, an astonishing delay considering that the Crown had readied their cases years before.

He finally went to trial in July 2010 and was convicted on several of the charges. However, the Nova Scotia Court of Appeal overturned the convictions based on the 14 year delay of the Crown in proceeding against MacIntosh. But that wasn’t the only problem with the convictions.

The trial judge had so badly confused the evidence, even mixing up the witnesses and attributing evidence to one witness that was derived from another, that the Appeal Court determined that even absent the extraordinary delay, the judge’s errors would be cause for a new trial.

A key issue at the trial were statements made by an alleged victim in 1995 and again in 2000 concerning details of the abuse he suffered, that simply could not be reconciled.

The trial judge acknowledged the discrepancies and based on the victim’s evidence and the testimony of another witness, determined that the assault did not take place at all. Yet despite this finding, the judge did not turn his attention to the issue of the victim’s overall credibility.

The finding that the alleged abuse did not occur as described, or at all, points to a flaw in the Crown’s preparation of their witness. In cases where a witness signs a comprehensive statement which he radically amends five years later, it is incumbent upon the Crown to test the evidence of the witness to ensure its reliability. Under cross-examination, this witness agreed that the event did not occur.

That the Supreme Court of Canada denied the Crown’s appeal in an oral judgment from the bench speaks to the Crown’s flimsy case. After all, an accused is not obliged to turn himself into the police or give a statement. It is the Crown’s job to bring an accused to trial.

Most notably, the Crown was unable to provide any rationale for their delay in prosecuting this case and cries for a public inquiry may well be revived now that our highest court has spoken. However, karma is alive and well because a few short years later Mr. MacIntosh was convicted of sex crimes in Nepal and sentenced to seven years in prison.

I suspect he would rather be serving time in a Canadian prison…

I Didn’t Do It: Is There Justice for the Wrongfully Convicted?

My sense of justice really comes unglued when I read about another poor schlep who has spent years in prison for a crime he or she did not commit.

One of the most recent is Romeo Phillion, now 74-years-old, who was wrongfully convicted of murdering Ottawa firefighter, Leopold Roy in 1967. Mr. Phillion spent 31 years behind bars, mainly because of his initial false confession, quickly recanted, which resulted in a plea deal, and the despicable suppression of crucial evidence by the Crown, that would have exculpated Mr. Phillion.

Nothing really important…just uncontroverted evidence known by the Crown, that Romeo Phillion was two hundred kilometres away from the murder scene. You mean he was somewhere else? Yes, that’s right. You mean the real killer is still at large? Yes, again, that’s correct.

It’s a tie as to which family should feel more aggrieved, Mr. Roy’s or Mr. Phillion’s.

While I am a law and order defender, what really galls me is the lack of remorse of police and prosecutors in botched criminal cases. In Mr. Phillion’s case, retired Superintendent John McCombie said “Everything I did, I did according to the law”, also noting that he was “surprised and disappointed”, presumably because Mr. Phillion was set free. The level of arrogance is astounding.

Even with this evidence and Mr. Phillion’s release from prison in 2003, the Crown insisted that he be retried, maintaining this position until 2009 when all charges were dropped. In May 2012 Mr. Phillion filed a $14 million dollar lawsuit, which no doubt will be vigorously opposed by the Crown.

Quebecer Rejean Hinse is another victim who never received an apology. Imprisoned in the 1960’s for an armed robbery conviction, he served eight years of a fifteen year sentence. However, justice was still illusory after the Quebec Court of Appeal quashed his conviction because the Crown, in their wisdom, only entered a “stay of proceedings”.

A “stay” puts the case on hold for one year or permanently, but provides no resolution as to guilt or innocence. Clearly not a satisfactory outcome for an innocent accused.

Mr. Hinse was able to take his case to the Supreme Court of Canada where the Court ruled there was insufficient evidence to convict. Despite his acquittal, he had to fight for financial compensation, finally in 2011 receiving $4.5 million in a settlement with the Quebec government and obtaining a judgment against the federal government of $8.6 million. Not surprisingly, the feds are appealing the order that they pay millions in compensation.

The road to a declaration of innocence is long and tortuous. Of course, Canada is not alone in its reluctance to implement a process where the wrongfully convicted can have speedy access to independent review procedures, DNA testing and the like. Criminal justice reformers have recommended an independent committee, outside of the criminal justice system, to address these horrific cases, a plan that is long overdue.

In a recent Illinois case, 50-year-old Andre Davis, who served 32 years in prison for the 1980 rape and murder of three-year-old Brianna Sickler, was exonerated when it was determined that blood and semen at the crime scene was not Davis’. Nonetheless, State Attorney Julia Reitz could not bring herself to admit the unbelievable injustice of Mr. Davis’ wrongful conviction, instead remarking they would not retry Andre Davis because of the age of the case and deceased or missing witnesses.

While it is difficult to find Canadian statistics on the number of wrongfully convicted, the University of Michigan has established a national registry for the United States where they record 891 wrongfully convicted persons between January 1989 and March 2012.. These numbers do not include another 1,170 victims who were exonerated in “group exonerations”, cases where thirteen separate “police scandals” have resulted in overturned convictions.

I can’t imagine what it must be like to be tried and convicted at trial, endure an unsuccessful appeal, perhaps even a further appeal to the Supreme Court of Canada, and then languish in prison for dozens of years, for a crime you didn’t commit.

When Rejean Hinse was asked by the media to describe his time in prison, he showed them a picture of Edvard Munch’s “The Scream” to explain the utter despair he suffered. No amount of money can atone for a life in prison.

Lawdiva aka Georgialee Lang

Couple Convicted of Satanic Child Abuse Freed From Prison and Declared Innocent

You may recall the hysteria in the 80’s and early 90’s when an organized network of daycares were alleged to be involved in satanic ritual child abuse of youngsters in their care, the most infamous being the McMartin preschool case.

Virginia McMartin operated her preschool in Manhattan Beach, California employing family members and other staff. An investigation was commenced after one student’s mother reported to the police that her son had been sodomized by a McMartin staff member. From there the case snowballed with allegations of all manner of sexual acts involving 360 children. Eventually Mrs. McMartin and six employees were charged with 321 counts of child sexual abuse involving 48 children.

The McMartin trial lasted seven years at a cost of $15 million with not one conviction entered. Apart from prosecutorial misconduct it was determined that the interviewing of the children by specialized social workers was inherently flawed by suggestive, leading questions and interviewing which induced false memory syndrome.

The number of wrongful convictions for ritual sexual abuse is not documented but this week a couple from Austin Texas were declared innocent after serving 21 years in prison. Dan and Fran Keller operated a daycare from their home until three children accused them of dismembering babies, torturing pets and videotaping sexual orgies with the children. They were eventually convicted of sexual assaulting a three-year-old girl and sentenced to a 48-year prison term.

Their convictions in 1992 were based on the evidence of a young doctor with limited experience with sexual abuse victims who testified there was physical evidence of sexual interference. He later recognized that his inexperience had led to an erroneous conclusion that the child had been sexually abused. Prosecutors requested the release of the Kellers in 2013 and asked the court to reverse their convictions, which was done, however, the appeal court declined to pronounce the couple innocent.

The Kellers are now senior citizens who lost twenty-one of their best years, years that were more difficult because of the nature of the offence that resulted in their imprisonment. With their exoneration and declaration of innocence they will each receive $80,000 for every year they served in prison. Dan and Fran Keller are surprisingly upbeat and say they simply want to get on with their lives, now their nightmare is finally over.

Their pro bono defence lawyer, Keith Hampton, maintains that the Kellers were victims of the “satanic panic” that swept the United States in the early 90’s assisted by inept social workers and gullible police officers. The Keller investigation also identified other abuse suspects, including an Austin police captain and several of their neighbours.

Lawdiva aka Georgialee Lang

Incompetent Lawyer is Grounds for New Trial: Or is it?

You have surely heard the time-worn adage “You get what you pay for”? Often that is true, but not always.

The decades-long investigation into the death of 15-year-old Martha Moxley of tony Greenwich, Connecticut in 1975 ultimately led to the  2000 arrest and  2002 conviction of Michael Skakel, infamous as a Kennedy cousin.

Over the years, Skakel, with the help of cousin Robert Kennedy,  battled to reverse his conviction, but was largely unsuccessful until 2013 when he persuaded Mr. Justice  Thomas Bishop of the Connecticut Superior Court to overturn his conviction, based on the incompetence of his trial lawyer.

Skakel’s trial lawyer was no junior schlep, but celebrity attorney Mickey Sherman whose reputation as a skilled, albeit flamboyant criminal counsel, was well-established.

Sherman’s successful law career was fast tracked when he became a legal commentator and analyst for  MSNBC, CNBC, HLN, Fox News, CBS, and CNN.  But his courtroom prowess took a huge hit after representing Michael Skakel in his  2002 murder trial.

Skakel’s new counsel argued that attorney Sherman spent more time basking in the limelight and charming the media than putting his mind to an aggressive, comprehensive defence of Mr. Skakel. From the outset, it was Michael Skakel’s older brother, Tom, who was suspected of sexually assaulting and beating neighbour girl Martha Moxley  with a golf club.

He was a plausible suspect who had a history of  emotional instability, anger and violence and  had admitted to consensual sexual relations with Martha on the night she died. Ms. Moxley’s diary confirmed an ongoing sexual tension between her and Tom Skakel.

Another young man, Ken Littleton,  who  worked as a tutor for the Skakel family and lived with them, also attracted the attention of police investigators. In finding that Mickey Sherman did not properly defend his client,  Judge Bishop noted Mr. Sherman’s failure to argue that either or both of these suspects was the more likely perpetrator, introducing an element of reasonable doubt, was a serious error.

Skakel also had an independent alibi witness that Mr. Sherman did not call to testify. Sherman advised the court that he had not been told about this witness, however, if Mr. Sherman had read the transcript of the  grand jury hearing he would have known.

A particularly strong prosecution witness was vigorously cross-examined by Mr. Sherman,  who  later bragged of his decimation of the witness, but Sherman failed to call witnesses who could  actually impeach his testimony.  Mr. Sherman’s excuse was that they couldn’t be found, although later Skakel’s appellate counsel easily located them.

Among the  litany of instances of ineffective assistance of counsel was Mr. Sherman’ s acceptance of two jurors who Mr. Sherman could and should have declined to seat on the jury panel.

The first was a police officer who knew Mr. Sherman and was a motorcycle buddy of one of the investigating officers.  The juror reminded Mr. Sherman that he had effectively defended a client who had assaulted the juror and had on another occasion angered this juror’s wife when he aggressively cross-examined her in another case.

The second juror that Sherman should not have approved was a woman who admitted that her good friend’s mother knew Martha Moxley’s mother. She said she thought it would be a little awkward for her to explain an acquittal to her friend and that she might feel defensive about an acquittal, given the friendship with Mrs. Moxley. She also indicated that a friend’s father had been murdered and she testified that it could be difficult for her, as a juror, to separate herself from feelings that might arise because her oldest child and Ms. Moxley were the same age. Shockingly, Mr. Sherman saw no reason to eliminate these jurors from the panel.

Yesterday a new page in this murder mystery was written when the Connecticut appeal court overturned Judge Bishop’s  judgment ending Mr. Skakel’s short-lived freedom. The court found that attorney Mickey Sherman, despite accusations to the contrary, represented him effectively and thus earned his $1.2 million dollar legal fee.

No doubt further appeals will follow.

Lawdiva aka Georgialee Lang

It All Seemed So Good: Toronto Neurosurgeon Arrested for Murder of Wife

Mohammed Shamji had it all:  a beautiful wife, who was herself a family doctor, three lovely children, and a PhD from Duke University in biomedical engineering, which paved the way for his reputation as a world-renowned neurosurgeon. But the family was hiding a secret…according to news reports, the Shamji’s had visits from the police more than once for allegations of domestic violence and neighbours reportedly heard them fighting.

Tragically the ultimate weapon for men that engage in family violence was unleashed when Dr. Sahmji, age 40, allegedly murdered his wife, Elana Fric-Shamji last week in their garage. He was arrested on Friday and is in police custody charged with first degree murder. The media reports that Dr. Shamji placed her body in a suitcase and dropped her  beside a river in suburban Toronto, where she was found the day before her husband was arrested.  The coroner determined she died from strangulation and blunt force trauma.

It is impossible to pigeon-hole Dr. Shamji as he does not fall within the typical profile of a husband (or wife) who murders their partner, which includes severe mental illness, previous felony convictions, lower intelligence, and more cognitive impairment than in other types of murders. However, eschewing political correctness,  it may well be that his cultural upbringing played a role.

The killing of a female intimate partner or spouse is referred to as “uxoricide”. Statistics reveal that of 2,340 partner murders in America in 2007, female victims made up 70%. In South-East Asia 55% of all murdered women died at the hands of their partner, in Africa it is 40%, and 38% in the Americas. It is reported that approximately 7 women are killed per month in England and Wales, 4 women per month in Australia, and in the United States it is 76 women per month.

Dr. Elana Fric-Shamji had recently filed for divorce and expressed relief that she was on her way to a new life. This stage of separation is the most dangerous time for women. Her last tweet on November 27, 2016 was lively and upbeat, displaying a photo of her and a fellow female physician. Her children have now been placed with their maternal grandparents. How very sad…

Lawdiva aka Georgialee Lang

Can Residue on a Cell Phone Identify a Criminal?

The field of investigative science is rapidly expanding, but it is also diminishing as forensic scientists throw out investigative tools that have been discredited, such as bite-mark analysis.

In a study funded by the National Institute of Justice,  and carried out by  biochemists at the University of California, San Diego, scientists  have discovered that residue aka “gunk” on a person’s cell phone can reveal much about the phone’s owner. Anything we touch leaves behind trace chemicals, molecules, and microbes which can be analyzed to obtain lifestyle information, including diet, hygiene products, health status and locations visited.

In a press release, the authors of the study said that this process  can reveal whether “ a person is likely female, uses high-end cosmetics, dyes her hair, drinks coffee, prefers beer over wine, likes spicy food, is being treated for depression, wears sunscreen and bug spray—and therefore likely spends a lot of time outdoors—all kinds of things.”

The authors of the study caution that this technique only provides a general lifestyle readout and unlike fingerprint analysis is not capable of providing a match to a particular person.

Then how is this information useful? The analysis could assist  a criminal investigator to narrow down the owner of an object found at a crime scene and assist in the determination of a viable suspect. Besides criminal profiling, it can be used for airport screening, medication adherence monitoring and environmental exposure studies.

The authors say their next project is to look at other personal items, such as wallets and keys to determine if their molecular analysis applies to these objects.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

 

 

Judge’s Decision Results in Tragedy

Have you ever thought about how judges make decisions? Frankly, I rarely think about this as my focus is simply on persuading a judge to see it my way. But learned scholars have studied and researched the psychology of judicial decision-making with interesting results.

The authors of “Blinking on the Bench: How Judges Make Decisions”* say that judges are predominantly intuitive decision makers, a characteristic that unfortunately can lead to flawed decisions. Of course, some intuitive decisions are accurate, but as between those kind of decisions and  the more academically rigorous “deliberation” method,  acting on gut feelings or hunches can be a dangerous way to adjudicate matters of critical importance to participants in the justice system.

A case this week out of Madison, Kentucky highlights the impact of judges’ “getting it right”.

Local prosecutor Chad Lewis was in court in Madison on October 6, 2016 seeking an arrest warrant against Laura Russell’s husband, Anthony Russell, age 51. The couple was divorcing and it was going far from well. Charged in August 2016 with strangulation and domestic battery for allegedly attacking his wife on several occasions. Mr. Russell was out on bond of $500.00 and subject to a restraining order, that he apparently ignored.

This court appearance was scheduled after Ms. Russell advised the police that her husband was continuously stalking her. She was upset, intimidated and frightened.

Judge Michael Hensley presided at the hearing, however, he refused to issue a warrant for Mr. Russell’s arrest and instead issued a summons requiring Mr. Russell to attend court on  October 11, 2016 after the three-day long weekend.

Mr. Russell did not show up at court on October 11 and neither did his estranged wife. They were both dead. Mr. Russell went to Ms. Russell’s home on October 7 and stabbed her multiple times. He then  committed suicide, blowing his head off with a pistol…a tragedy that devastated Judge Hensley.

The judge released a statement to the press expressing his condolences to Ms. Russell’s family, saying he felt “horrible about her death” and understood that his sincere regret would not “bring her back”. He explained that he didn’t believe there was “probable cause” to issue a warrant and said “I made what I thought to be the correct legal decision…obviously I made a decision that had the most tragic result possible”.

Prosecutor Lewis criticized Judge Hensley for failing to accede to his request for a warrant for stalking. Meanwhile, Ms. Russell’s lawyer suggested that it was Mr. Lewis’ fault as he could have asked for a warrant for multiple breaches of the restraining order, instead of seeking a probable cause hearing for a new charge of stalking.

Judge Hensley also announced that he would institute a new procedure in respect of arrest warrants, by ensuring that a hearing be scheduled for the day the warrant request is made.

 Lawdiva aka Georgialee Lang

*Chris Guthrie,  Jeffrey J. Rachlinski & Andrew J. Wistrich

“Bill Cosby” Law to Take Effect in California

In Canada there is no statute of limitations for criminal offences. If you committed a robbery,sexually assaulted a person, or even murdered a person decades ago, the law is coming for you, if they find sufficient evidence to prosecute. Admittedly, historical cases are more difficult to prove: evidence is lost, witnesses die, and memories fade, but Canadians recognize that a crime is a crime is a crime and the passage of time ought not to excuse an offender of his or her criminal wrongdoings.

Not so in the United State, where criminals can beat the system if they have not been prosecuted within certain proscribed time periods.  Justification for limitation laws include that an alleged offender ought not to have to defend himself after a lengthy period of time has passed, again because of lost evidence, faded recollections and other “fairness” arguments. That this approach clearly prejudices victims has apparently fallen on deaf ears, until now.

This week California’s Governor Jerry Brown signed a new law that changes the limitation period in California for rape and other sexual molestation cases from 10 years to 20 years commencing in  2017. California’s limitation law reforms are not at the leading edge as  Nevada and Colorado amended their laws earlier this year, again expanding the period to 20 years. All of these legal reforms arise from the allegations of at least 30 women who say they were drugged and assaulted by Mr. Cosby.

According to the California Women’s Law Centre, 17 other States in America have no limitation period for rape.

California attorney Gloria Allred represents 30 women in the Bill Cosby case, most of whom have no legal recourse because of the limitation laws on the books in most states. She notes that the legislation is not retroactive, so it will not apply to her clients.

Proponents of the new law explain that it “tells every rape and sexual assault victim in California that they matter and that, regardless of when they are ready to come forward, they will always have an opportunity to seek justice in a court of law.” California state Senator Connie Leyva who brought the bill forward said in a statement. “Rapists should never be able to evade legal consequences simply because an arbitrary time limit has expired. There must never be an expiration date on justice!”

Lawdiva aka Georgialee Lang

Custody Dispute Puts Father in Prison for 18 Years

For those of you who think that false allegations of abuse are a rarity in family law cases, think again! Recently I acted for two clients, the first was a father accused by his estranged wife of molesting their young son. A police investigation was initiated and the Ministry of Child and Family Services barred him from seeing any of his children.

The second client was accused by his common law spouse of all manner of outrageous abuse: physical, sexual, and psychological. The graphic descriptions of her alleged suffering were like nothing I had ever seen before. Another day, another police investigation.

In both cases the allegations were unfounded and dismissed, but not before wreaking havoc in two innocent men’s lives.

And not all abuse allegations are nipped in the bud…take for example the case of Luther Jones of  Santa Rosa, California. In 1998 he obtained custody of his daughter, an event that changed his life, only because immediately after he was awarded custody, his 10-year old daughter accused him of sexually molesting her.

Mr. Jones alleged that his former girlfriend, Elizabeth Woods’ accusations were false and only surfaced when he received custody of one of their children. A witness at trial told the court that Woods had told her she would put Jones in jail to prevent him from gaining custody. The ten-year old testified against Mr.  Jones. He was convicted and sentenced to 27 years in prison, all the while protesting his innocence.

But that little 10-year old grew up and at the age of 30 admitted to authorities that her mother forced her to falsely accuse Jones, because her mom was enraged that he obtained custody of another child of theirs. She also acknowledged that she was molested, but the perpetrator was a different boyfriend of her mother’s.

Luther Jones, now 70 years old, ill and frail, was released from prison and is expected to receive compensation of about $1 million dollars from the State of California.

The current county district attorney, Don Anderson remarked that in the context of a custody battle, the allegations of abuse must have attracted suspicion, but apparently not enough to see justice prevail. Anderson has announced his willingness to seek perjury-related charges against Ms. Woods, a fate that is far less than she deserves. He is also determined to investigate the new information that the ten-year old was molested, just not by Luther Jones.

Lawdiva aka Georgialee Lang