Wrongful Convictions in Canada: Far Greater Than You Thought

Wrongful convictions have been a part of the Canadian criminal justice system for decades. Yet very few criminologists or legal scholars have been looking into the topic. We have only recently begun looking at previous criminal convictions which may have been the result of a wrongful conviction. 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. 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 as: “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”(2008, p.21). Put differently, tunnel vision is the presumption that an individual suspect is guilty at an early stage of the investigation and proceeding with that focus firmly in mind. But Beare and her colleagues have determined that while tunnel vision is definitely a factor in wrongful convictions, it is the end result. A variety of other factors including faulty investigatory procedures, police deviance and corruption, and systemic, structural, and individual factors, all play a huge role in adding up to the final step, of tunnel vision. Various inquiries have been held to determine the root causes of these wrongful convictions but the recommendations stemming from these extremely time-consuming follow ups are not being followed or understood, and more wrongful convictions are occurring. These recommendations are not being understood by the police officers, and more importantly the individual police agencies are failing to accept this guidance. They are not doing enough in regards to re-training of officers or training of new ones in order to help combat this problem. Noble cause corruption is another phenomenon which leads to wrongful convictions. It is a mindset or sub-culture which fosters a belief that the ends justify the means. Also various other factors have come to light including invalid expert testimony given by so called experts in the field, which has later proven to be incorrect.
An interesting theme that is apparent to the broader literature is the use of DNA testing to exonerate hundreds of wrongfully convicted individuals. A majority of wrongful conviction articles look at cases in the United States of America; this is not surprising in the sense that the U.S. has a much larger criminal justice system in comparison to its neighbor, Canada. Also Leo and Gould give other factors in wrongful convictions, included in their article Studying Wrongful Convictions: Learning from Social Science, which are “eyewitness misidentifications, false confessions, informant perjury, junk science, tunnel vision, police, and prosecutorial error”(2009, p.18). Many of these are in direct relation to the police. Police deviance has been an ongoing issue for decades now, and lately has become more and more prominent due to the advancements in technology, and the media attention it receives. Leo and Gould highlight the fact that in the late 1980′s DNA testing is what launched the inquiries into wrongful convictions, and since then more than 230 individuals have been exonerated of their wrongful sentences. We must not forget that there are currently hundreds of applications for inquiries into cases, but due to the lengthy time it takes for the cases to proceed, innocent individuals remain stripped of their liberties and freedoms.
Margaret Beare makes a very interesting point in regards to police officers assuming innocence until proven guilty. When one is working for weeks, months, and in some cases years to prove the guilt of an individual it is extremely difficult for him to build his guilty case by assuming innocence. She points out an apparent theme in many of these wrongful conviction cases to be “that justice is a game that you wrap to fit your preference, 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. Officers wanting to get the guy they “know” to be guilty and forgetting about other possible suspects, which leads to their instincts being false. This has been repeated time and time again in several wrongful convictions such as the case of Donald Marshall Jr.
Beare argues that wrongful convictions are caused by other issues such as systemic problems within the criminal justice system itself. She goes on to say 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). She stresses the fact that just saying it is a systemic problem does not cure the fact that it continues to go on. In relation to this I have noticed that many of the articles published make various realizations such as, this is a problem with the criminal justice system, or a structural problem within a specific organization, but they make no suggestions in regards to solving these issues. We must ask ourselves how big of an actual problem is this, that it is taking this long to solve? Agreeing with Bears belief, Punch suggests that police corruption and deviance should be looked at through a systemic viewpoint, and many instances of deviance are due to organizational problems.
The idea of noble cause corruption is also something to ponder in the sense that 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). According to Maurice Punch in his text Police Corruption: Deviance, accountability and reform in policing, noble cause as an officer doing what he had to do in order to “get a result, achieve convictions and see justice done.”(2009, p.107). He believes that an officer is guilty of the noble cause corruption syndrome when said officer is willing to do anything within his means to achieve a conviction. The officer strongly believes that a guilty person will get away with a crime unless he or she does something about it. Whether this means putting someone they suspect of committing a crime behind bars, instead of having solid proof, then so be it. Many officers work on cases and investigations for months at a time only to be left with the uncertainty of whether the suspect will get convicted. Many officers take it upon themselves to ensure that ‘justice is served’, and feel that they are doing it for the good of the community and in some cases, the country.

Some Canadian wrongful conviction victims: Donald Marshall Jr., James Driskell, David Milgaard, William Mullins-Johnson, Steven Truscott, Kyle Unger

Various wrongful conviction inquiries have been made in the past several decades, many of which have gathered vast media attention. One of the major ones that made headlines around the globe was the wrongful conviction of Steven Truscott. He was sentenced to hanging in 1969, at the age of 14 for a schoolmates murder. After spending several months as Canada’s youngest inmate on death row, his sentence was changed to life imprisonment. After spending almost his entire life in prison the Ontario Court of Appeal in 2007 overturned his conviction declaring the case “a miscarriage of justice that must be quashed”. He was awarded compensation for the mistake but that does not come close to the years of mental and physical anguish he had to endure while imprisoned. This was due to a number of factors, such as police laying down charges too quickly, and completely ignoring other potential suspects. Such as a sexual offender living nearby, and an electrician with a rape conviction; both were ignored by police, the obvious question being, why was this?(CBC, June 7/08).
Another interesting inquiry was made into the case of Donald Marshall Jr. where he was convicted of murdering his friend. It gives an example where police officers conceived a predetermined notion that he was the killer. Since he was already known to police they focused the investigation onto him. After his sentence had been overturned an inquiry commission determined that “systemic racism had contributed to his conviction”(CBC, Oct 14/10). Margaret Beare mentioned in her article that race was a prominent factor in many of the wrongful conviction cases in Canada; but even when the race factor was absent, the individuals were stereotyped by police and deemed to be weird or unordinary. She gives the example of Guy Paul Morin who was a beekeeper, a musician, and a gardener, and the police paid particular attention to him because of these “unusual” characteristics.

Just recently a man has filed a lawsuit against the Manitoba Court of Queen’s Bench last month in regards to a wrongful conviction sentence he served of 14 years. Kyle Unger was convicted in a murder of a teenage girl, but after serving part of his sentence, his charges were withdrawn thanks once again to there being no DNA evidence linking him to the crime(CBC, Sept 27/11).

Chart From: http://www.freerepublic.com/focus/news/741032/posts

Many issues have arisen stemming from the research conducted into the topic of wrongful convictions. Numerous scholars have claimed that there are many factors that are important which when combined together, can lead to a wrongful conviction. One of main factors that lead can lead to a wrongful conviction is mistaken identity, whereas the identity of an individual is mistaken as being the suspect. This can come from a number of different avenues, a witness may just want to help “solve” a crime, and point out an individual that had similarities between the suspect they saw and the individual standing before them in a police line-up. The police will then just “run with it” and focus their attention on getting the conviction without thinking about the error of eye-witnesses.

Another key factor in wrongful convictions is expert testimony; experts come into our judicial system to provide their opinion on a matter, well as history has shown, at times their opinion is wrong. For example with the William Mullins-Johnson case an expert pathologist was called in to testify. Charles Randal Smith was an expert pathologist that testified and played a major role in determining the time of death of the victim and whether she had been sexually assaulted or not. Eleven years after the initial trial it was determined by three other pathologists, that there was no evidence that the girl had been sexually assaulted, and Mr. Mullins-Johnson was acquitted.

An interesting study by Garrett & Neufield, Invalid Forensic Science Testimony and Wrongful Convictions claims that of the 82 cases or 60% of the bulk of trials looked at in regards to testimony by 72 forensic analysts called by the prosecution, were invalid. Also noting that defense counsel rarely obtains experts of their own and fails to cross-examine the “experts” brought in by the crown. This leads me to an earlier point made by Beare “that justice is a game that you wrap to fit your preference, or your unconscious biases. Therefore “shop around” and select evidence, experts, and judges based on your specific agenda.” I understand that humans make mistakes, we all do it, but when an individual’s life is in jeopardy; the criminal justice system should do more in order to confirm these opinion statements given in court, not just rely on them because they were given by experts.

Hundreds of cases of wrongful convictions have surfaced in North America alone over the past several decades, thanks to an increase in new technology, more and more individuals are being released from their prisons due to various inquires being conducted. Unfortunately these inquires should not have been necessary in order to allow free individuals to enjoy their liberties and not have been made to face the conditions they did. Several factors including police misconduct, systemic racism, tunnel vision, erroneous eye witness testimony as well as incorrect expert testimony have all lead to wrongful convictions over the last several decades. The question arises, what can we as a society to do help combat wrongful convictions? Can we do anything in regards to police training, and ensuring expert testimony is credible or are these issues going to remain regardless?

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.

Wrongful Convictions: The Effects of Tunnel Vision

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.

Wrongful Convictions: Far Greater than Tunnel Vision

Wrongful convictions have been a part of the Canadian criminal justice system for decades. Yet very few criminologists or legal scholars have been looking into the topic. We have only recently begun looking at previous criminal convictions which may have been the result of a wrongful conviction. 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. 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 as: “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”(2008, p.21). Put differently, tunnel vision is the presumption that an individual suspect is guilty at an early stage of the investigation and proceeding with that focus firmly in mind. But Beare and her colleagues have determined that while tunnel vision is definitely a factor in wrongful convictions, it is the end result. A variety of other factors including faulty investigatory procedures, police deviance and corruption, and systemic, structural, and individual factors, all play a huge role in adding up to the final step, of tunnel vision. Various inquiries have been held to determine the root causes of these wrongful convictions but the recommendations stemming from these extremely time-consuming follow ups are not being followed or understood, and more wrongful convictions are occurring. These recommendations are not being understood by the police officers, and more importantly the individual police agencies are failing to accept this guidance. They are not doing enough in regards to re-training of officers or training of new ones in order to help combat this problem.

An interesting theme that is apparent to the broader literature is the use of DNA testing to exonerate hundreds of wrongfully convicted individuals. A majority of wrongful conviction articles look at cases in the United States of America; this is not surprising in the sense that the U.S. has a much larger criminal justice system in comparison to its neighbor, Canada. Also Leo and Gould give other factors in wrongful convictions, included in their article Studying Wrongful Convictions: Learning from Social Science, which are “eyewitness misidentifications, false confessions, informant perjury, junk science, tunnel vision, police, and prosecutorial error”(2009, p.18). Many of these are in direct relation to the police. Police deviance has been an ongoing issue for decades now, and lately has become more and more prominent due to the advancements in technology, and the media attention it receives.  Leo and Gould highlight the fact that in the late 1980’s DNA testing is what launched the inquiries into wrongful convictions, and since then more than 230 individuals have been exonerated of their wrongful sentences. We must not forget that there are currently hundreds of applications for inquiries into cases, but due to the lengthy time it takes for the cases to proceed, innocent individuals remain stripped of their liberties and freedoms.

Margaret Beare makes a very interesting point in regards to police officers assuming innocence until proven guilty. When one is working for weeks, months, and in some cases years to prove the guilt of an individual it is extremely difficult for him to build his guilty case by assuming innocence. She points out an apparent theme in many of these wrongful conviction cases to be “that justice is a game that you wrap to fit your preference, 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. Officers wanting to get the guy they “know” to be guilty and forgetting about other possible suspects, which leads to their instincts being false. This has been repeated time and time again in several wrongful convictions such as the case of Donald Marshall Jr.

Beare argues that wrongful convictions are caused by other issues such as systemic problems within the criminal justice system itself. She goes on to say 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). She stresses the fact that just saying it is a systemic problem does not cure the fact that it continues to go on. In relation to this I have noticed that many of the articles published make various realizations such as, this is a problem with the criminal justice system, or a structural problem within a specific organization, but they make no suggestions in regards to solving these issues. We must ask ourselves how big of an actual problem is this, that it is taking this long to solve? Agreeing with Bears belief, Punch suggests that police corruption and deviance should be looked at through a systemic viewpoint, and many instances of deviance are due to organizational problems.

The idea of noble cause corruption is also something to ponder in the sense that 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). According to Maurice Punch in his text Police Corruption: Deviance, accountability and reform in policing, noble cause as an officer doing what he had to do in order to “get a result, achieve convictions and see justice done.”(2009, p.107). Many officers work on cases and investigations for months at a time only to be left with the uncertainty of whether the suspect will get convicted. Many officers take it upon themselves to ensure that ‘justice is served’, and feel that they are doing it for the good of the community and in some cases, the country.

Some Canadian wrongful conviction victims: Donald Marshall Jr., James Driskell, David Milgaard, William Mullins-Johnson, Steven Truscott, Kyle Unger

Various wrongful conviction inquiries have been made in the past several decades, many of which have gathered vast media attention. One of the major ones that made headlines around the globe was the wrongful conviction of Steven Truscott. He was sentenced to hanging in 1969, at the age of 14 for a schoolmates murder. After spending several months as Canada’s youngest inmate on death row, his sentence was changed to life imprisonment. After spending almost his entire life in prison the Ontario Court of Appeal in 2007 overturned his conviction declaring the case “a miscarriage of justice that must be quashed”. He was awarded compensation for the mistake but that does not come close to the years of mental and physical anguish he had to endure while imprisoned. This was due to a number of factors, such as police laying down charges too quickly, and completely ignoring other potential suspects. Such as a sexual offender living nearby, and an electrician with a rape conviction; both were ignored by police, the obvious question being, why was this?(CBC, June 7/08).

Another interesting inquiry was made into the case of Donald Marshall Jr. where he was convicted of murdering his friend. It gives an example where police officers conceived a predetermined notion that he was the killer. Since he was already known to police they focused the investigation onto him. After his sentence had been overturned an inquiry commission determined that “systemic racism had contributed to his conviction”(CBC, Oct 14/10). Margaret Beare mentioned in her article that race was a prominent factor in many of the wrongful conviction cases in Canada; but even when the race factor was absent, the individuals were stereotyped by police and deemed to be weird or unordinary. She gives the example of Guy Paul Morin who was a beekeeper, a musician, and a gardener, and the police paid particular attention to him because of these “unusual” characteristics.

Just recently a man has filed a lawsuit against the Manitoba Court of Queen’s Bench last month in regards to a wrongful conviction sentence he served of 14 years. Kyle Unger was convicted in a murder of a teenage girl, but after serving part of his sentence, his charges were withdrawn thanks once again to there being no DNA evidence linking him to the crime(CBC, Sept 27/11).

Hundreds of cases of wrongful convictions have surfaced in North America alone over the past several decades, thanks to an increase in new technology, more and more individuals are being released from their prisons due to various inquires being conducted. Unfortunately these inquires should not have been necessary in order to allow free individuals to enjoy their liberties and not have been made to face the conditions they did.

Referenced:
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.