Posts Tagged ‘donald marshall jr.’

A wrongful conviction can be understood as the conviction of an individual of a crime that person did not commit. The “crime that person did not commit” could refer to an “actual innocence” mistake (in which the convicted offender was not even involved in the actual crime), or it could refer to a “legal innocence” mistake (in which the convicted individual was involved in the crime to a different extent than the crime represented by the charge). The wrongful conviction of innocent people has gradually been recognized over the last quarter of a century as a problem for the Canadian criminal justice system. It is extremely difficult to determine the number of wrongful convictions in Canada. A situation where an individual is found to be legally guilty of a crime he or she did not commit; and the actual perpetrator is out free in the world. For a variety of reasons a person may be wrongfully convicted of a crime he or she did not commit, and the only way to prove his or her innocence is in a court of law. One of the major aspects of wrongful convictions is the tunnel vision; it results when there is a narrow focus on a limited range of alternatives. Tunnel vision is insidious and it results in the police officer becoming so confused upon an individual or incident that no other person or incident register’s in the officer’s thoughts. Canadian wrongful conviction victims are: Donald Marshall Jr., James Driskell, David Milgaard, William Mullins-Johnson, Steven Truscott, Kyle Unger.

While conducting an initial Google search on the topic “The Role of Police in Wrongful Convictions in Canada”, a number of interesting cases emerged. One of the result was a news article published by CBC news that highlights some major cases in Canadian history. This article has twelve cases and a brief description for each case and it is fairly recent because it was updated in October/2010.
An interesting case that was found during the preliminary research done on the topic is the case of Donald Marshall Jr case. The late Mr. Marshall was as a young Aboriginal man from Nova Scotia imprisoned 11 years for a murder he did not commit. The Marshall case was the subject of the first public inquiry into a wrongful conviction in Canada. The inquiry first raised awareness about wrongful convictions and it also made important recommendations about how to prevent them in the future.

Another interesting case was found is the case of Tammy Marquardt A young single mother from Ontario who was imprisoned for 13 years for the murder of her two and one half year son on the basis of erroneous forensic pathology expert testimony that the cause of her son’s death was asphyxia.

The term miscarriage of justice is not defined in legislation, but has been broadly defined by courts to include cases “where there was no unfairness at trial, but evidence was admitted on appeal that placed the reliability of the conviction in serious doubt. In these cases, the miscarriage of justice lies not in the conduct of the trial or even the conviction entered at trial, but rather in maintaining the conviction in the face of new evidence that renders the conviction factually unreliable.” Miscarriages of justice are not limited to cases of proven or factual innocence and include both cases where there have been unfair trials or the reliability of the conviction is in serious doubt. Justice Kaufman in an important report advising the Minister of Justice whether to reopen a conviction has stressed that a miscarriage of justice would occur both if an innocent person was convicted or if new evidence could reasonably have affected the verdict. In the latter circumstances “it would be unfair to maintain the accuser’s conviction without an opportunity for the trier of fact to consider new evidence.” Thus convictions in Canada can be both re-opened and quashed on grounds short of proven innocence. In my view, this is a strength of the Canadian system given the practical difficulties of establishing innocence in a definitive manner.

The various research that has been conducted on this topic primarily focuses on the phenomenon of tunnel vision, which Margaret Beare defines in her scholarly article Shouting Innocence from the Highest Rooftop, “the single-minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably color the evaluation of information received and one’s conduct in response to the information” (Margaret Beare, 2008, p.21).
The article “Shouting Innocence from the Highest Rooftop” is Margaret Beare’s research on a project undertaken with Dianne Martin that was still incomplete at the time of the latter’s sudden death. The objective was to asses the degree to which the police had or had not implemented recommendations for changes in police procedures made by inquiries, task, forces, commissions and auditor general’s reports. The recommendations are based on wrongful convictions. The over representation of judges and lawyers in the evaluating process and the privileging of legal knowledge over social science or other scholarships appear to be endemic. It is also easier to formulate languages like “tunnel vision” and systemic missteps to characterize weaknesses in the system than to provide concrete examples how to provide those in the future. There is a tendency to revert to blaming individuals or rotten apples despite having identified the whole system per as contributing to the wrong outcome.

The idea of Noble Cause Corruption is a mindset or sub-culture which fosters a belief that the ends justify the means. In other words, law enforcement is engaged in a mission to make our streets and communities safe, and if that requires suspending the constitution or violating laws ourselves in order to accomplish our mission, then for the greater good of society, so be it. The officers who adopt this philosophy lose their moral compass. This type of thinking is misguided and places the officer at risk of losing his/her job, facing criminal charges, and seriously damaging the reputation of their agency. Some examples include: lying in court to convict a suspect, also referred to as “testifying,” planting evidence on suspects, and falsifying reports. According to Beare, the noble cause corruption when the “justice officials – in the name of getting a conviction – are prepared to violate laws, Charter protections, and any number of ethical considerations” (Beare, 2008, p.33).

Margaret Beare makes an interesting point in regards to police officers assuming innocence until proven guilty. “We ought not to wonder at the number of cases where it is revealed that the police operated from an assumption of guilt, but rather question how a justice system could have been imagined whereby officers working daily for months or even years on a case-often a horrendous crime of some sort-could be expected to try to build cases while assuming innocence.” (2008, p.33). She also points out that the theme in all of these wrongful-conviction cases is that justice is a “game that you wrap to fit your preferences, or your unconscious biases.” Therefore “shop around” and select evidence, experts, and judges based on your specific agenda” (2008, p.33). Erroneous errors in police investigations have been one of the most common causes of wrongful convictions and that behind some of these errors is a deliberate attempt to get the guy that you know to be guilty. Margaret Beare argues that wrongful convictions are caused by other issues such as systemic problems within the criminal justice system itself. She also explains that these are “problems that won’t be fixed as long as the miscarriage of justice is treated as an isolated even…wrongful convictions don’t occur in a vacuum. There are systemic reasons they go wrong” (2008, p.29). However, using the word systemic does not cure the problem.
Statistics

This topic “The role of police in wrongful convictions” relates to the idea around police deviance and accountability because Maurice Punch in his text Police Corruption: Deviance, accountability and reform in policing argues that corruption is not one thing but covers many deviant and criminal practices in policing which also shift over time. It rejects the ‘bad apple’ metaphor and focuses on ‘bad orchards’, meaning not individual but institutional failure. For in policing the organisation, work and culture foster can encourage corruption. This raises issues as to why do police break the law and, crucially, ‘who controls the controllers’? Corruption is defined in a broad, multi-facetted way. It concerns abuse of authority and trust; and it takes serious form in conspiracies to break the law and to evade exposure when cops can become criminals.

As the pace of DNA exoneration has grown across the country in recent years, wrongful convictions have revealed disturbing fissures and trends in our criminal justice system. Together, these cases show us how the criminal justice system is broken – and how urgently it needs to be fixed. In 2001, the Center on Wrongful Convictions at Northwestern Law School analyzed the cases of 86 death row exonerees. They found a number of reasons why innocent people are wrongly convicted in capital cases. Also Marvin Zalman give other factors in wrongful convictions, included in their article “Criminal Justice System Reform and Wrongful Conviction”, Which describes the nature and importance of wrongful conviction as a criminal justice policy issue, the development of an innocence movement to litigate on behalf of potential exonerees and to promote policy issues, the innocence movement’s policy and research agenda, and the very small amount of criminal justice research on the issue in comparison to legal and psychological inquiry. Wrongful Conviction as a Policy Issue: This section describes the policy salience of wrongful conviction, the nature of the emerging innocence movement, the movement’s reform and research agenda, and the limited nature of innocence research by criminologists and criminal justice scholars. “Wrongful conviction is now an issue on the public agenda. The news media, long Supportive of prosecutors, are now sensitized to miscarriages of justice, and their Continuing reports of exoneration keeps the issue in the public eye”. (Tulsky, 2006; Warden, 2003). Marvin Zalman also makes a specific points about the civil cases, fair trial rights vindicate the truth, “while government misconduct is revealed as having concealed evidence of a Person’s innocence, leading to a gross miscarriage of justice” (Garrett, 2005, p. 38). As a result of the DNA revolution, it is now thought that wrongful convictions are so frequent as to constitute a major policy concern that poses a serious challenge to the fairness and accuracy of the Criminal justice process. This article has proposed a broad research agenda addressing the new innocence movement that works to clear wrongly convicted convicts and to generate and publicize policy changes that logically should reduce miscarriages of justice.

Wrongful convictions are an inherently difficult topic to study, but the increase in exonerations over the past two decades has accentuated the need for research on how and why wrongful convictions occur. The major factor contributing to the increased discovery of wrongful convictions has been the use of post-conviction DNA examinations. Exoneration using DNA evidence have been well publicized, whereas non-DNA exoneration have typically been difficult to track, but both are important in determining the major factors behind wrongful conviction.

In conclusion, there can be no greater failure of the Criminal Justice System than to convict an innocent person. Yet we know it happens, and with greater frequency than once believed. If one extrapolates from the 197 convicted persons exonerated by DNA of serious crimes in the U.S., and the small but growing number in Canada, it is only reasonable to assume that the actual number is far greater, because of the high number of cases where DNA was not available to assist in determining the truth. This is unacceptable. Fortunately, it is possible to greatly reduce the potential for wrongful convictions. In every Canadian case discussed earlier, serious, avoidable errors were made in the police investigations (as well as by other players in the Criminal Justice System). There is now considerable research on why investigative failures leading to wrongful convictions occur, which provides the road map to preventing them. Proper recruiting and training, implementation of the major case management model, fostering a culture of excellence in ethical investigations, and ongoing education into the causes of wrongful convictions and proper investigative techniques are necessary to create an environment in which only the guilty are convicted, not the innocent. A wrongful conviction not only hurts the individual convicted, it hurts society, both in terms of the true guilty party being allowed to remain free, but also in terms of the public’s confidence in the Criminal Justice System. The police play a pivotal role in this system, and must play a similarly significant role in working to prevent wrongful convictions. The question arises, what can we as a society to do help combat wrongful convictions? Can we do anything in regards to police training?

References:

Beare, M. (2008). “Shouting Innocence from the Highest Rooftop”, in M. Beare (ed.) Honouring Social Justice. Toronto: University of Toronto Press: 17-54.

Punch, M. (2009). Police corruption: deviance, accountability and reform in policing. UK: Willan Publishing

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The wrongful conviction of innocent people has gradually been recognized over the last quarter of a century as a problem for the Canadian criminal justice system. It is extremely difficult to determine the number of wrongful convictions in Canada. One of the major aspects of wrongful convictions is the tunnel vision; it results when there is a narrow focus on a limited range of alternatives. Tunnel vision is insidious and it results in the police officer becoming so confused upon an individual or incident that no other person or incident register’s in the officer’s thoughts. The various research that has been conducted on this topic primarily focuses on the phenomenon of tunnel vision, which Margaret Beare defines in her scholarly article Shouting Innocence from the Highest Rooftop, “the single-minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably color the evaluation of information received and one’s conduct in response to the information” (Margaret Beare, 2008, p.21).

Tunnel vision, and its perverse by-product “noble cause corruption,” is the antithesis of the proper roles of the police and Crown Attorney. Yet tunnel vision has been identified as a leading cause of wrongful convictions in Canada and elsewhere. Beare and her colleagues have determined that while tunnel vision is definitely a factor in wrongful convictions, it is the end result from a number of supporting faulty investigatory procedures.

The article “Shouting Innocence from the Highest Rooftop” is Margaret Beare’s research on a project undertaken with Dianne Martin that was still incomplete at the time of the latter’s sudden death. The objective was to asses the degree to which the police had or had not implemented recommendations for changes in police procedures made by inquiries, task, forces, commissions and auditor general’s reports. The recommendations are based on wrongful convictions. The overrepresentation of judges and lawyers in the evaluating process and the privileging of legal knowledge over social science or other scholarships appear to be endemic. It is also easier to formulate languages like “tunnel vision” and systemic missteps to characterize weaknesses in the system than to provide concrete examples how to provide those in the future. There is a tendency to revert to blaming individuals or rotten apples despite having identified the whole system per as contributing to the wrong outcome.

As the pace of DNA exonerations has grown across the country in recent years, wrongful convictions have revealed disturbing fissures and trends in our criminal justice system. Together, these cases show us how the criminal justice system is broken – and how urgently it needs to be fixed. In 2001, the Center on Wrongful Convictions at Northwestern Law School analyzed the cases of 86 death row exonerees. They found a number of reasons why innocent people are wrongly convicted in capital cases. Also Marvin Zalman give other factors in wrongful convictions, included in their article “Criminal Justice System Reform and Wrongful Conviction”, Which describes the nature and importance of wrongful conviction as a criminal justice policy issue, the development of an innocence movement to litigate on behalf of potential exonerees and to promote policy issues, the innocence movement’s policy and research agenda, and the very small amount of criminal justice research on the issue in comparison to legal and psychological inquiry. Wrongful Conviction as a Policy Issue: This section describes the policy salience of wrongful conviction, the nature of the emerging innocence movement, the movement’s reform and research agenda, and the limited nature of innocence research by criminologists and criminal justice scholars. “Wrongful conviction is now an issue on the public agenda. The news media, long Supportive of prosecutors, are now sensitized to miscarriages of justice, and their Continuing reports of exonerations keeps the issue in the public eye”. (Tulsky, 2006; Warden, 2003). Marvin Zalman also makes a specific points about the civil cases, fair trial rights vindicate the truth, “while government misconduct is revealed as having concealed evidence of a Person’s innocence, leading to a gross miscarriage of justice” (Garrett, 2005, p. 38). As a result of the DNA revolution, it is now thought that wrongful convictions are so frequent as to constitute a major policy concern that poses a serious challenge to the fairness and accuracy of the Criminal justice process. This article has proposed a broad research agenda addressing the new innocence movement that works to clear wrongly convicted convicts and to generate and publicize policy changes that logically should reduce miscarriages of justice.

Margaret Beare makes an interesting point in regards to police officers assuming innocence until proven guilty. “We ought not to wonder at the number of cases where it is revealed that the police operated from an assumption of guilt, but rather question how a justice system could have been imagined whereby officers working daily for months or even years on a case-often a horrendous crime of some sort-could be expected to try to build cases while assuming innocence.” (2008, p.33). She also points out that the theme in all of these wrongful-conviction cases is that justice is a “game that you wrap to fit your preferences, or your unconscious biases.” Therefore “shop around” and select evidence, experts, and judges based on your specific agenda” (2008, p.33). Erroneous errors in police investigations have been one of the most common causes of wrongful convictions and that behind some of these errors is a deliberate attempt to get the guy that you know to be guilty. Margaret Beare argues that wrongful convictions are caused by other issues such as systemic problems within the criminal justice system itself. She also explains that these are “problems that won’t be fixed as long as the miscarriage of justice is treated as an isolated even…wrongful convictions don’t occur in a vacuum. There are systemic reasons they go wrong” (2008, p.29). However, using the word systemic does not cure the problem.

One of the news article was published by CBC news that highlights some major cases in Canadian history. This article has twelve cases and a brief description for each case and it is fairly recent because it was updated in October/2010. It is written from the media’s perspective and no comments from the police are noted.

Noble Cause Corruption is a mindset or sub-culture which fosters a belief that the ends justify the means. In other words, law enforcement is engaged in a mission to make our streets and communities safe, and if that requires suspending the constitution or violating laws ourselves in order to accomplish our mission, then for the greater good of society, so be it. The officers who adopt this philosophy lose their moral compass. This type of thinking is misguided and places the officer at risk of losing his/her job, facing criminal charges, and seriously damaging the reputation of their agency. Some examples include: lying in court to convict a suspect, also referred to as “testifying,” planting evidence on suspects, and falsifying reports. According to Beare, the noble cause corruption when the “justice officials – in the name of getting a conviction – are prepared to violate laws, Charter protections, and any number of ethical considerations” (Beare, 2008, p.33).

This topic “The role of police in wrongful convictions” relates to the idea around police deviance and accountability because Maurice Punch in his text Police Corruption: Deviance, accountability and reform in policing argues that corruption is not one thing but covers many deviant and criminal practices in policing which also shift over time. It rejects the ‘bad apple’ metaphor and focuses on ‘bad orchards’, meaning not individual but institutional failure. For in policing the organisation, work and culture foster can encourage corruption. This raises issues as to why do police break the law and, crucially, ‘who controls the controllers’? Corruption is defined in a broad, multi-facetted way. It concerns abuse of authority and trust; and it takes serious form in conspiracies to break the law and to evade exposure when cops can become criminals.

Various wrongful conviction inquiries have been made in the past several decades, many of which have gathered vast media attention. The notorious cases of David Milgaard, Thomas Sophonow, Guy Paul Morin, Donald MarshallJr., James Driskell and Gregory Parsons are a reminder of the fallibility of our criminal justice process.Unfortunately, these individuals are but some of the relatively recent persons who have been incarcerated at length for serious crimes that they did not commit. They are not the only victims. Every time someone is convicted of an offence for which they are innocent, the justice system fails in three ways: first, by inflicting unjustifiable harm on the wrongfully convicted person, secondly, by allowing the actual perpetrators of the crime to remain free to victimize others, and thirdly, by re-victimizing the victim or his or her family by undoing the emotional closure that has already taken place.

Referenced:
Beare, M. (2008). “Shouting Innocence from the Highest Rooftop”, in M. Beare (ed.) Honouring Social Justice. Toronto: University of Toronto Press: 17-54.

Zalman, M. (2006). Criminal Justice System Reform and Wrongful Conviction. Criminal Justice Policy Review, 17(4), 468-492.

Punch, M. (2009). Police corruption: deviance, accountability and reform in policing. UK: Willan Publishing.

The Role of Police in Wrongful Convictions in Canada

The wrongful conviction of innocent people has gradually been recognized over the last quarter of a century as a problem for the Canadian criminal justice system. It is extremely difficult to determine the number of wrongful convictions in Canada. One of the major aspects of wrongful convictions is the tunnel vision; it results when there is a narrow focus on a limited range of alternatives. Tunnel vision is insidious and it results in the police officer becoming so confused upon an individual or incident that no other person or incident register’s in the officer’s thoughts.

While conducting an initial Google search on the topic “The Role of Police in Wrongful Convictions in Canada”, a number of interesting cases emerged. One of the result was a news article published by CBC news that highlights some major cases in Canadian history. This article has twelve cases and a brief description for each case and it is fairly recent because it was updated in October/2010.

An interesting case that was found during the preliminary research done on the topic is the case of Donald Marshall Jr case. The late Mr. Marshall was as a young Aboriginal man from Nova Scotia imprisoned 11 years for a murder he did not commit. The Marshall case was the subject of the first public inquiry into a wrongful conviction in Canada. The inquiry first raised awareness about wrongful convictions and it also made important recommendations about how to prevent them in the future.

Another interesting case was found is the case of Tammy Marquardt A young single mother from Ontario who was imprisoned for 13 years for the murder of her two and one half year son on the basis of erroneous forensic pathology expert testimony that the cause of her son’s death was asphyxia.

These two case studies illustrate the two main ways that wrongful convictions are revealed in Canada. Donald Marshall’s murder conviction was overturned after the federal Minister of Justice granted his petition for a new appeal on the basis of fresh evidence and after Marshall had exhausted appeals all the way to the Supreme Court of Canada. Tammy Marquardt’s wrongful conviction was overturned when the Supreme Court of Canada granted her leave to make a late and normally out of time appeal. The Court of Appeal then held that the murder conviction could was a miscarriage of justice in light new forensic pathology evidence that the case of death was not asphyxia but unascertained. A new trial was ordered, but the prosecutor withdrew charges and the trial judge apologized for what happened to Ms. Marquardt and her son. Both Marquardt and Marshall were granted bail pending their new appeal based on fresh evidence.

The police play a critical role in almost all wrongful convictions. In the Donald Marshall Jr. case discussed above, the police virtually framed Donald Marshall, using oppressive tactics against young and unstable witnesses until they were prepared to perjure themselves and falsely testify that they saw Marshall stab Seale. The local police also persisted in their belief that Marshall had to be guilty even after a companion of the real killer came forth shortly after Marshall’s 1971 conviction and told them that Marshall was innocent. Police influence and participate in witness error in two ways: by failing to detect it when a witness first offers it, or by deliberately forcing or encouraging a witness to change his or her testimony. Police failure to detect witness error is often a product of tunnel vision: if the misleading evidence fits police theory or biases, it may not be rigorously examined. All the articles that were found during the preliminary research; none of them had any response from the police in them. Something that was noticeably missing is that there was nothing mentioned about the police apology.

The role of police in wrongful convictions has been a heated debate for many years in Canada. Several high-profile cases have been in the media involving wrongful convictions in our courts. Following these cases, several high-end inquiries have taken place that have looked into the circumstances that produced these wrongful convictions, including police negligence, wrongdoing, and tunnel vision. One of the major aspects of wrongful convictions is tunnel vision; which is when the police focus their investigation towards one individual, and tend to forget about other possible suspects. They focus all their man power into convicting one person of interest while completely forgetting about other possibilities.
A wrongful conviction is exactly how it sounds, someone is wrongfully convicted of a crime that they did not commit, and the actual perpetrator is out there with his/her freedom. There have been many wrongful convictions that have made it to the spotlight, there are probably hundreds of others that still are forgotten. Many of these convictions were during the pre-DNA era, prior to the use of DNA testing. This is a common trend through many of the wrongful convictions that have occurred in Canada’s history. Many people were wrongfully convicted due to misconduct and lack of knowledge by the police.
While conducting an initial Google search on the topic “The Role of Police in Wrongful Convictions in Canada”, a number of interesting cases emerged. Several articles, some up to 90 pages in length, are present, and help showcase some of the reasons behind the wrongful convictions. Some of these articles including “Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System” by Bruce MacFarlane give some insight into tunnel vision experienced by the police. Where they focus only on one suspect and work extremely hard to put them behind bars while forgetting about potential others.
Another result was a news article published by CBC news that highlights some major cases in Canadian history. It looks at twelve cases throughout Canada’s history and gives a brief description followed by an outcome. This article is written from the media’s perspective and no comments from the police are noted. Along with the other results this one is fairly recent, only a year old. It helped broaden my search on the topic by focusing on some of the major convictions that were overturned due to them being wrongful. It also gave me a case list of potential exploration on the topic for the future.
An interesting case that was found during the preliminary research done on the topic is the case of Ivan Henry. Ivan Henry was convicted of a number of sexual assaults in the 1980’s in Vancouver, and has spent 27 years in prison because of it. One of the key points resulting in his conviction was the victims identifying him from a photograph of a police line-up. Here is the photograph: Ivan Henry Police Lineup
One can clearly see why the victims chose him, because he is the one in a headlock and appears to be wild, unlike the other suspects who are all police officers with smiles on their faces. Now the question arises why were the police officers allowed to unjustly play games with this man’s future? It is clear that they are not taking their occupation seriously in this manner, and should have been reprimanded for their actions. These types of stories highlight the role of police in wrongful convictions. Some police officers engage in misconduct and have the potential to jeopardize the life’s of innocent citizens.
Another interesting case and the only Wikipedia link in the results was the case of Donald Marshall Jr. Though it was fairly short it provided some insight into the case, and gave another example of the role of police in wrongful convictions. In this case the police had a predetermined notion that Marshall was the killer. Even though the true killer had admitted to the stabbing, he later lied about his role to police. Donald Marshall Jr. was already known to police and therefore the police focused on him and became victims of tunnel vision focusing just on him and not other possible suspects. Unfortunately for Mr. Marshall he was released after serving 11 years of his prison sentence, which was life imprisonment. If it was not for a witness coming forward it is still possible the Mr. Marshall could still be in prison. A majority of the results where articles that were written by University professors, and a couple of media articles but none of them had any response from the police in them. None of the search results yielded a police apology or mentioned any investigation to be completed.