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

_DSC4851My 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

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

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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

A Merry Christmas for Two Innocent Men Set Free in December 2015

BarristerAs Franz Kafka wrote in “The Trial”:

“It’s only because of their stupidity that they’re able to be so sure of themselves.”

While Vancouver’s wrongly convicted Ivan Henry spent weeks in court this year seeking compensation due to a disturbingly flawed police investigation; a prosecutor whose focus was on winning, not achieving justice; and an arrogant jurist, more innocent men around North America were set free from prison after decades of wrongful imprisonment. The numbers are staggering, but their stories are similar. Here are two tragic examples.

Native American Marvin Roberts of Anchorage, Alaska was 19 years old in 1997 when after eleven hours of police interrogation he admitted killing 15-year old John Hartman who died after being beaten, kicked, and sexually assaulted on a lonely Anchorage street. Three other companions were also arrested, charged, and all were convicted and sentenced to lengthy prison sentences. They were nicknamed the “Fairbanks Four”. Mr. Roberts received a 33-year sentence.

Alaska’s Innocent Project was eventually able to prove they were wrongfully convicted resulting in their release from prison on December 18, 2015. But in exchange for their freedom, the prosecutor’s office extracted an unconscionable concession from each of them, namely, that none of them could bring claims for compensation for the decades they spent in jail. Factors leading to their convictions included mistaken witness identification; later recanted, false forensic evidence; perjury; false accusations; and the misconduct of officials.

Floyd Bledsoe, age 23, of Oskaloosa, Kansas also lived the nightmare of a wrongful conviction for the murder, rape, and kidnapping of 14-year old Zetta Camille Arfmann, his wife’s younger sister, who lived with Floyd, his wife, Heidi and their two children.

After a neighbourhood search for Zetta, Floyd’s brother, Tom Bledsoe, discovered her body and produced the murder weapon. He then called his pastor and admitted to the crime, begging for forgiveness. He also admitted his guilt to the local police, before recanting and accusing his brother Floyd of the horrendous crime, explaining that his initial confession was in response to Floyd’s threats that he would release embarrassing information about Tom to his family and friends.

Floyd and Tom’s father, Floyd Bledsoe Sr., provided an airtight alibi for Tom, as did witnesses for Floyd. Astoundingly, Floyd was convicted of all charges and given a life sentence plus 16 years, despite a complete lack of forensic evidence against him. The prosecutor proffered evidence at trial that the rape kit did not produce any DNA results.

Floyd’s multiple appeals were unsuccessful until one appellate court ruled that mistakes made at trial by the prosecution, that went unchallenged by Floyd’s lawyer, were grounds for vacating the conviction. He was released from prison, but after the prosecutor’s successful appeal, he was returned to complete his prison sentence.

To the rescue was Kansas University’s School of Law Innocence Project who in the course of their investigation discovered an agreement between the prosecutor, the county sheriff, and a representative of the FBI, that no DNA testing  on the rape kit would be performed, calling into question the prosecutor’s statement that the rape kit was negative for DNA.

Once Floyd’s lawyers were able to obtain DNA testing on a vaginal swab and the rape kit,  it was determined these items contained the DNA of Tom Bledsoe and excluded Floyd Bledsoe. DNA on Zetta’s socks from Floyd Bledsoe Sr. indicated he had likely assisted Tom to pull the body to its final resting spot.

A month before Floyd’s conviction was vacated, Tom Bledsoe committed suicide, leaving notes admitting he raped and murdered Zetta and apologizing for betraying his innocent brother.

Floyd spent 15 years in prison for crimes he did not commit. Again, prosecutorial misconduct together with ineffective legal counsel, and perjured testimony played a role in the injustice that befell Floyd.

Lawdiva aka Georgialee Lang

Junk Science Strikes Again: Flawed Arson Evidence

GeorgiaLeeLang016My regular readers will know that I am disgusted and disappointed with the vast number of men (and women) who have been imprisoned for crimes they didn’t commit, and for wrongful convictions based on junk science. I have tackled the now discredited theory that hair found at the scene of a crime is foolproof evidence of guilt, if it can be linked to a suspect, and the notion that bite marks can provide reliable evidence upon which a conviction can be founded.

To add to the list of flawed scientific conclusions is evidence of arson that we now know to be false. There are far too many examples of wrongful convictions based on testimony that a fire was not accidental but a deliberate criminal act.

One of the more recent cases involves the conviction of Han Tak Lee who was sentenced to life imprisonment in Pennsylvania for the 1989 arson murder of his 20-year-old mentally ill daughter, Ji Yun Lee. Mr. Lee was released from prison in 2014 after the report and recommendations of Chief U.S. Magistrate Judge Martin C. Carlson of Harrisburg Pennsylvania was handed down.

Judge Carlson held that the arson evidence proffered by the prosecution some 25 years ago, while readily accepted in 1990, had been thoroughly debunked after two decades of research in the cause and origin of fires. What is as troubling as the wrongful conviction was the Crown’s decision to appeal Mr. Lee’s release, although they were not successful. It concerns me that prosecutors in these cases rarely accept judicial findings that the evidence they presented was flawed. These prosecutors seem to forget their role is to seek justice, not merely to convict.

Mr. Lee finally caught a break when renowned fire scientist, John Lentini, a 40-year veteran of fire science, heard about his case and offered to assist his lawyers for free, although Mr. Lentini received appropriate compensation for his expert testimony as the local American-Korean community had raised enough funds to cover Mr. Lee’s costs. Lentini said that prosecutors submitted every fire science myth that was available, calling it the worst case of junk arson science he had ever seen.

The tragedy of junk science is the wrongful imprisonment of innocent people.  The American National Registry of Exonerations reports that since 1989 31 people in the United States have been exonerated for arson crimes. But the Registry does not record all of the travesties. For example, Louis Taylor served 42-years in prison for allegedly setting a hotel fire in Tucson Arizona that killed 29 people. And James Hugney was set free this year after 36-years of imprisonment for a 1978 house fire that killed his 16-year-old son.

But if it could get worse, it does. Cameron Todd Willingham was executed in Texas in 2004 for the alleged arson murder in 1991 of this three young daughters. Eight experts have now concluded that the house fire was probably accidental. It wasn’t a crime at all.

 

Photo by Tom Salyer.

John Lentini. Photo by Tom Salyer.

Lawdiva aka Georgialee Lang

 

 

Junk Science Responsible for Wrongful Convictions

BarristerThe Federal Bureau of Investigation and the Justice Department have finally admitted there may be hundreds of wrongfully convicted persons languishing in prison, some on death row because of “junk science”, notably microscopic hair analysis.

They recently revealed that for over thirty years so-called FBI “experts” have provided flawed testimony in almost every criminal case where human hair was found at the crime scene. The government’s review of cases where hair evidence was a central part of the case against an accused has led to a finding that 26 out of 28 FBI microscopic hair experts unwittingly provided flawed testimony in 95% of the 268 criminal trials that have been scrutinized.

Unfortunately, most of the time the experts opined to a scientific certainty that the accused’s hair matched hair found at the crime scene, making hair analysis an important evidentiary weapon relied on by prosecutors around the country.

Assisted by the National Association of Criminal Defense Lawyers and the Innocence Project, thus far the review indicates 32 people were given the death penalty, and of those 32, 14 have already died in prison or been executed.

What is most startling, however, is that the scandal of faulty hair analysis has just surfaced in the United States, although evidence of its problematic nature has been known for years. In 2004 Canada’s Globe and Mail newspaper highlighted a groundbreaking study from Manitoba that arose from the wrongful murder convictions of two innocent men.

James Driskell of Winnipeg was convicted in 1991 of murdering Perry Harder who the Crown alleged was poised to testify against Driskell in a stolen property case. The only evidence linking Mr. Driskell to the crime scene was three hairs found in Mr. Driskell’s truck that were said to belong to Hardy.

While Driskell wasted away in jail, maintaining his innocence, his lawyers finally obtained an order for DNA testing of the hair. The three hairs did not belong to Perry Harder, in fact, they were from three different unknown persons. Driskell spent twelve years at Stony Mountain Prison before his release. He was awarded $4 million dollars in compensation.

In another Manitoba case, 19-year old Kyle Unger was sentenced to life in prison for the murder of Brigitte Grenier, age 16, at a music festival in 1990. The only evidence that damned Mr. Unger was a single hair on Ms. Grenier’s sweatshirt that an RCMP forensic technician testified belonged to Kyle Unger.

Ms. Grenier’s murder enraged the small Manitoba community of Roseisle, particular when the details of her death were released. She was brutally beaten, strangled, had bite marks, and sticks were inserted in her vagina and anus. A despicably deranged murderer had to be responsible.

Despite evidence that Ms. Grenier was last seen with Timothy Houlahan, a minor at the time, with blood and other forensic evidence linking him to the crime, Mr. Houlahan insisted that Mr. Unger was involved.

Later a “Mr. Big Operation” would elicit a confession from Mr. Unger. Both were convicted and appealed. Unger’s appeal was dismissed. Timothy Houlahan’s appeal was successful and a new trial was ordered, however, he committed suicide before the second trial commenced.

Meanwhile Kyle Unger never stopped protesting his innocence and spent 14 years in prison until the Association in Defence of the Wrongfully Convicted stepped in, prompted by their client, James Driskell’s wrongful conviction.

In an admirable and unprecedented move, the Government of Manitoba, under the leadership of Deputy Attorney General Bruce MacFarlane, established the Forensic Review Committee, charged with determining whether there were other cases like James Driskell’s, where DNA testing might shed new light on the validity of previous hair microscopy comparison evidence.

DNA testing proved conclusively that the hair on Ms. Grenier’s clothing did not belong to Mr. Unger and his “confession” made to please “Mr. Big” suffered from the frailties recently identified by the Supreme Court of Canada. In 2009 the Manitoba Crown dismissed the charges against Mr. Unger, but refused to compensate his for the time he spent in prison, alleging that he is responsible for his conviction because of his Mr. Big confession.

In 2011 Mr. Unger filed an action against the government and the RCMP seeking $14 million dollars in compensation, a million for each year of detention. Interestingly, the prosecutor in the Unger case, George Dangerfield, was also involved in the wrongful convictions of James Driskell, Thomas Sophonow, and Frank Ostrowski. Sophonow negotiated $2.3 million in compensation, while Mr. Ostrowski is still waiting for compensation for 23 years spent in prison. The poster child (now man) for wrongful convictions in Canada remains David Milgaard who received $10 million dollars.

Several years ago I met and spoke with Mr. Milgaard and was impressed by him, never forgetting that the compensation for his time in prison for a crime he did not commit could never be an adequate replacement for his mental and physical torture.

Thankfully, DNA testing has now overtaken the flawed science of hair analysis, but that still leaves other areas where the science may be more illusory than accurate, including footprint analysis, bite mark analysis and the Canadian cornerstone of difficult prosecutions: Mr. Big.

Lawdiva aka Georgialee Lang

Death Row Prosecutor Apologizes to Innocent Man

_DSC4851My regular readers will know that I abhor the arrogance of police and prosecutors who play a significant role in the wrongful conviction of innocent accused, both in Canada and the United States, but refuse to acknowledge their responsibility in these gross miscarriages of justice.

Imagine my delight when I read about the mea culpa from Louisiana prosecutor Marty Stroud III who sent an innocent man, Glenn Ford, to death row in 1984. His apology in the form of a letter to the editor of a Shreveport newspaper was poignantly refreshing:

“In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie “And Justice for All”, winning became everything.

After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That’s sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any celebration…

I end with the hope that providence will have more mercy for me than I showed Glenn Ford. But, I am also sobered by the realization that I certainly am not deserving of it.”

Thirty-years after his conviction and almost as many years since Mr. Stroud left the prosecutor’s office, Glenn Ford, assisted by the Louisiana Innocence Project, was released from death row.

The former prosecutor wrote his letter when he learned that Mr. Ford was battling to receive compensation from the State for his wrongful conviction, a fight that was proving difficult.

Stroud wrote that he should have listened to rumours that others were involved in the crime and he ought to have realized that the testimony he introduced from a forensic pathologist, who opined that the shooter was left-handed, was nothing more than “junk science”.

The exoneration of Glenn Ford is bittersweet, as at age 64 he has terminal lung cancer. As for Marty Stroud I respect his courage to admit his mistakes and can only hope that other players in the justice system who bear some responsibility for wrongful convictions will follow his lead.

As for the state of Louisiana it is unconscionable for them to deny and delay Mr. Ford’s compensatory claim. He is seeking the sum of $330,000 an amount that pales next to the $10 million dollars rightfully paid to Canada’s David Milgaard for his 23-year wrongful incarceration for rape and murder.

No amount of money is adequate payment for the loss of one’s liberty and freedom, made worse by the prospects of unnatural death at the pleasure of the State and the justice system.

Lawdiva aka Georgialee Lang

ANOTHER WRONGFUL CONVICTION: IVAN HENRY “INNOCENCE ON TRIAL” by JOAN MCEWEN

BarristerI admit it…I’m a crime junkie. I’ve read every true crime book written by Ann Rule and Jack Olsen. I’m also a big fan of America’s Most Wanted, and I frequently peruse the FBI Most Wanted List. Don’t hate me when I tell you that I follow the executions in the States, even though I’m against capital punishment.

Having established my credentials to review Vancouver lawyer Joan McEwen’s new book “Innocence on Trial: The Framing of Ivan Henry” Heritage House Publishing 2014, I should also add that I’m a criminology graduate and have been married to a police officer for almost three decades.

Beginning with Steven Truscott and on to David Milgaard, Guy Morin, Romeo Phillion, Michael Morton and so many others, I have been horrified by the number of men who have languished in prison for crimes they did not commit, both in Canada and the United States.

But Joan McEwen’s story of the persecution of Ivan Henry brings it all home, right to our doorstep in Vancouver British Columbia, where a down-on-his-luck ex-con, father to two young daughters, found himself ensnared in a nightmare that still has not ended, after serving 27 years in prison.

Ivan Henry, age 35, was in an on-again/off-again relationship with ex- wife Jessie, a drug addict, when he was detained by the Vancouver Police Department as a burglary suspect. What he didn’t know was that the police were really after him for fifteen sexual assaults attributed to a sex offender the police called the “rip-off rapist”, based on the offender’s pretense that he was looking for someone who had stolen from him. Henry’s record contained one hit for attempted rape, a charge he pled guilty to on the advice of his lawyer when he lived in Winnipeg.

He denied being involved in any sexual offences and offered to take a polygraph test. The police declined his offer, but were adamant that he participate in a line-up. When he resisted, three “lean and mean” uniformed officers grabbed him and maneuvered him into a line with an assortment of their dark-haired colleagues, wrapping themselves around him, while holding his head of red hair in a vise-grip.

The photo of that line-up became a crucial part of Henry’s case and it was later revealed to be a “trophy”, retained by the trial judge, Mr. Justice Bouck, who proudly displayed it in the Judge’s Lounge in the courthouse at 800 Smithe Street, Vancouver. Cheap laughs…

Henry was immature and ornery, and too foolish to realize he was in water over his head when, after a preliminary hearing before His Honour Wallace Craig, he was committed to trial for ten counts of rape. Before his 1983 jury trial began Henry fired his legal aid lawyer. When offered the services of legal star, Richard Peck as trial counsel, Henry declined, believing the system was rigged and that Peck was just another player in the grand conspiracy against him.

How difficult could it be? There was no evidence against him: no hair, fibre, DNA , confession, or eye witnesses, and he had an alibi for many of the times he was alleged to be in flagrante delicto.
His trial tactics were unconventional, to say the least. Because he knew he had not assaulted any of the parade of women who identified him as their rapist, some of whom said they recognized his voice, he argued they were all liars…making it all up.

Before the trial completed Henry came to the realization that while he could handle the facts, he needed a lawyer to help him with the law. When he asked Mr. Justice Bouck to allow him to obtain a lawyer for that purpose, Bouck J. said:

“You should have thought of that before…I said you should have a lawyer. You turned it down. You elected to represent yourself. You take the chances…We’ve given you a copy of Martin’s Criminal Code.”

After ten hours of deliberation, the jury convicted Ivan Henry on all ten counts, whereafter Crown Counsel Mike Luchenko announced the Crown was seeking a dangerous offender designation. As night follows day, Henry was “bitched”, the expression used to describe criminals found to be “habitual” or dangerous offenders.

Henry poured over law books in preparation for his appeal but could not afford the thousands of dollars required for the court transcripts. Eventually he appeared before British Columbia’s Court of Appeal on a motion to dismiss the appeal for want of prosecution, brought by appellate crown Al Stewart, later Mr. Justice Stewart. Of course, the
Crown won and Henry was banished to purgatory. Later his leave to appeal to the Supreme Court of Canada was also rebuked.

Ms. McEwen’s carefully researched story reveals indifference, betrayal, class discrimination, and worst of all, a cast of characters who didn’t give a damn about Ivan Henry. He was just the usual collateral damage in the state’s zeal to close the books on a series of assaults that continued after Henry was locked away.

As the truth spills out, we learn that Ivan Henry’s ex-wife, sold him down the river, a la Judas Iscariot, in exchange for a few pieces of silver and gold, that ended up in her arm.

The unfortunate women who were victimized by a rapist, were then victims of a justice system that wasn’t really interested in the truth, for if it had been, they could have seen it staring in their face.

It is difficult to say who comes off worse in this sordid tale. Based on Ms. McEwen’s careful narrative, it must be a tie between Crown Counsel Mike Luchenko and trial judge Mr. Justice Bouck, both of whom deserve censure for the roles they played. By 1983, it was no secret that eyewitness testimony was unreliable and could never, by itself, be the foundation for a life sentence. But that’s what happened.

Years later, when one of the heroines of this story, Crown Counsel, Jean Connor , voiced her suspicions to the Attorney-General, concerning the convictions of Ivan Henry, McEwen reports that Mr. Luchenko tried, undeservingly, to take credit for an eleventh hour redemption.

With twists and turns galore, and an unvarnished glimpse of Canada’s brutal prison system, Ms. McEwen’s book is a compelling must-read for anyone who still believes justice should be blind, and that it is better that ten guilty men go free than to have one innocent man suffer.

Lawdiva aka Georgialee Lang