Tag Archives: misconduct

Part 2 – Manufacturing Guilt: Wrongful Convictions

I believe [the accused] did something very, very wrong in that room. But I also believe that nobody has asked me to play God. I’ve been asked to apply the law. Justice belongs to God; men only have the law. Justice is perfect, but the law can only be careful. […]

If we as a jury wanted to understand why the burden of proof fell on the prosecution, and fell with such gravity, we needed only to reflect on what we had discovered directly about the real power of the state and its agents: there was, in a deep way, no recourse. Yes, there were appeal courts, constitutional protections, citizen juries like us. But in the end – in the end, there was, simply, the final power of the state. There was always this. This was a power even more terrifying, in a way, than a man with a knife in a closed room. That sort of raw, physical power, for all its horrors, can never extend indefinitely in all directions. If you were to run outside, people would object, would (in principle) come to your aid. In the room, you know this, even if you cannot actually escape. But there is nowhere to run from the state: more or less everyone outside the room (the courtroom, the prison) has already accepted the legitimacy of what the state chooses to do to you. In fact, all those people out there, they actually constitute the state itself. If you run out to them, they will help catch you. There is nowhere to go.

A Trial by Jury: Burnett, D. Graham: 9780375727511: Books – Amazon.ca, at pp. 139 and 163.

(Part 1


In this excellent book (Duped: Why Innocent People Confess – and Why We Believe Their Confessions: Kassin Ph.D, Saul: 9781633888081: Books – Amazon.ca), social psychologist Saul Kassin deals extensively with the psychology of false confessions. He discusses many cases of false confessions, such as the Central Park Five, in which all five innocent youth confessed falsely.

Discusses the Kitty Genovese story (1964 Queens, NY) in extensive detail (chapter 2). The case is known popularly for the “bystander effect,” given that many people ignored a vicious rape/murder they could hear – although much of that has been questioned (see also). Winston Moseley was arrested, confessed (knowing extensive detail that no one else knew), and was eventually convicted (surprisingly not executed) and died of old age in jail decades later. He also confessed to a Kralik and Johnson murder. He was never prosecuted for the Johnson murder, while someone else was wrongfully convicted for the Kralik murder. Police refused to take Moseley’s confession seriously – particularly since they already had a confession from young Alvin Mitchell (after a 50-hour interrogation) for the Kralik murder (leading to the eventual wrongful conviction of Mitchell). One of the reasons for the Mitchell wrongful conviction was the trial judge (at the second trial – the first resulted in a hung jury) refusing to allow the victim’s dying statement (that she did not recognize her assailant, which would have excluded Mitchell but not Moseley) on technical hearsay grounds – gotta love evidence law!

One shocking quote about the refusal of the prosecutor to acknowledge its error (p. 140); a theme prominent in the following book, as well:

In a 2001 rape case in West Virginia, DNA testing not only excluded confessor Joseph Buffey but also matched a convicted sex offender. Yet rather than agree to vacate Buffey’s conviction, the prosecutor’s office proposed the new theory that Buffey and the sex offender were accomplices. This theory flatly contradicted the confession extracted from Buffey, which made no mention of an accomplice, and it contradicted the victim’s own lucid account of a harrowing and protracted ordeal involving a single perpetrator. (p. 140)

Another example cited is Juan Rivera, who was found guilty at a retrial – despite DNA evidence excluding him (p. 266).

Another terrible example is Billy Wayne Cope.

Another great quote (p. ix):

I’ve seen judges unwilling to serve as the gatekeepers they get paid to be by failing to exclude from evidence confessions that were quite clearly coerced, not voluntary.

I’ve seen prosecutors bend logic until it breaks, refusing to concede innocence despite DNA results that excluded the confessor, without doubt, and identified the actual perpetrator.

I’ve read contemporaneous newspaper accounts during trial that accepted the government’s public relations spin on the case hook, line and sinker.

Convicting the Innocent

In this book (Convicting the Innocent: Where Criminal Prosecutions Go Wrong: Garrett, Brandon L.: 9780674066113: Books – Amazon.ca), the author, Duke law professor Brandon L. Garrett, digs deep into many U.S. wrongful convictions (250 known DNA exonerations, obtaining trial transcripts of some 88% of them) and finds some appalling results. The most common exoneration was for rape (68% – for which the conviction rate apparently isn’t high enough), and another 21% convicted of both murder and rape (p. 5). A full 16% confessed to crimes they did not commit, with all but two of those confessing to details they could not have known without police “coaching” (p. 6). Eyewitness misidentification comprised 76% of the cases. “Invalid forensics” were found in 93 (of 153) analysts called by the prosecution. Informants were present in 21% of the cases. 17 were sentenced to death. More than 90% of the exonerees for whom transcripts were obtained asserted their innocence at trial. The majority of convictions went through multiple rounds of appeals untouched (p. 11). It took an average of 15 years for each exoneration. Judges and prosecutors sometimes opposed DNA testing. Most appallingly, judges (and prosecutors) sometimes initially refused to exonerate these people even after DNA proved their innocence (p. 11).

In one memorable case (David Gray), the prosecutor couldn’t remember when testifying whether he may have said something like “it won’t hurt you” when inducing a jailhouse informant to perjure himself (p. 122).

I got a kick out of a judge’s comments, during the sentencing of Michael Evans and Paul Terry, that the defendants walked with a swagger that suggested no remorse. Their lawyer bravely retorted that it is also clearly indicative of innocence (p. 162).

In the Rolando Cruz case, a few jurors later told the press that “half of the jurors had their minds made up before the trial even started” (p. 173).

At Arvin McGee’s third trial, a potential rogue juror (i.e. not prepared to convict) was extensively pressured by the other jurors to join the consensus for a guilty verdict. The defence’s mistrial application on this basis was subsequently denied. It took another 14 years for his DNA exoneration (p. 173).

In the case of Kennedy Brewer, the state refused to conduct DNA testing, lying that the sample was insufficient for testing. Many years later, post-conviction (for a brutal murder-rape of his own toddler daughter), Brewer managed to get the state to test the samples. He was excluded, so his conviction was vacated. However, the state kept him in limbo for the next 8 years, deciding whether or not to re-try him (p. 180).

Curtis McCarty had his conviction reversed twice (14 years apart) on appeal grounds, based on issues with the forensic evidence (the second time on fresh evidence about the misconduct of the expert, somehow discovered by his lawyers). He served 21 years in prison (p. 181).

In 10% of the cases that had written appeal decisions, judges had called the state’s case against the innocent and wrongfully accused “overwhelming” (p. 202).

In the late 1980s, Earl Washington Jr. had come “within nine days of his execution” (p. 219). Then, after 9 years on death row (in 1993), DNA testing practically excluded him – but not conclusively. As a result, his death sentence was commuted, but he remained in jail to serve a life sentence. He was only exonerated and released in 2001, after – get this – his lawyers discovered that the state had withheld a 1993 DNA test excluding him. A later independent audit sharply criticized the Virginia crime laboratory for producing false results and succumbing to political pressure to not exonerate Washington (p. 221).

In at least 49% of the cases, the exonerees had to obtain a judge’s order to get the DNA testing – suggesting the state improperly opposed the application (p. 227). For at least 18 exonerees, judges initially denied their applications for DNA testing (p. 228). For example, in the Bruce Godschalk case, the judge refused to order testing, seemingly convinced (wishful thinking, I’d suggest) by the strength of the confession that there would be nothing to see. Same with Byron Halsey. In other cases, it was denied on technical, procedural grounds. I’m guessing the legislation in the U.S. is far more favourable than in Canada, by the way, which is even more reluctant to entertain the possibility of innocence.

Shockingly, judges “refused to set free at least twelve exonerees despite at least preliminary DNA test results excluding them” (p 230).

A particularly cruel example is Roy Criner, where Texas Appeals Court Judge Sharon Keller fabricated creative excuses to justify not letting him go, even though DNA evidence excluded him (p. 230).

Radley Balko

See also Radley Balko very recently here:

  • You might think that if DNA testing could establish the innocence of a death row prisoner, a state would want to allow it, both so it didn’t execute an innocent man, but also so it could pursue real justice for the killer’s victims. You’d be wrong, at least in Texas. And the Supreme Court will decide this term whether Texas can get away with it.

  • Meanwhile, the Texas Court of Criminal Appeals has refused to overturn a conviction and death sentence, despite the fact that both the trial judge and the DA for the district where the prisoner was tried both say he was wrongly convicted.

Or Radley Balko on Charlie Vaughn (The maddening irrelevance of Charlie Vaughn’s innocence (substack.com)), emphasis added:

Arkansas provides no real way for prisoners like Vaughn to get back into state court, even when they have persuasive evidence of their innocence. This ought to be where the federal courts would intervene. But because of the Antiterrorism and Effective Death Penalty Act (AEDPA), a law signed five years after Vaughn’s 1991 conviction, the federal courts won’t even consider the evidence of his innocence. AEDPA gives prisoners like Vaughn one shot at federal review. The two other defendants never took their shot. Vaughn took his with that handwritten letter in 1995. So now he’s out of luck.

Believe it or not, this wrongful conviction inmate (self-represented, hand-written) appeal was dismissed in 1996 after a “careful and thorough review of the record” (chilling, probably false, and reminds me of similar language in R v NBM, 2021 ABCA 14: “Overall, when viewed with the benefit of the entire record, NM’s arguments in support of the first ground of appeal represent nothing more than a thinly veiled effort to convince the panel to reconsider the evidence and make different credibility assessments contrary to the standard of review and the role of this Court,” at para. 16; the word “record” is cited some 10 times there). He simply gets “one shot” and since he lost in 1995, he’s out of luck. Evidence of innocence be damned.

Manufacturing Convictions

In this 1998 book (Manufacturing guilt: Wrongful convictions in Canada: Anderson, Barrie: 9781895686937: Books – Amazon.ca), sociologists Barrie Anderson and Dawn Anderson go through several known Canadian wrongful convictions. They raise the very interesting point of a judge’s innate conflict of interest (p. 15):

Judges therefore have a tremendous responsibility to maintain justice. However, they also have the very important task of maintaining public confidence in the judicial system and emphasizing its legitimacy. To this end, lawyer Alastair Logan (1995) asserts, the judiciary will act to preserve the reputations of police officers, prosecutors, expert witnesses or others acting on behalf of the Crown when their reputation or the system is called into question. The possibility therefore exists that a judge may unintentionally or maliciously conduct a trial or instruct the jury in a way that is prejudicial to the accused, if he or she perceives that to do otherwise would somehow jeopardize the integrity of the judicial system.

Further, commenting on prosecutorial misconduct (p. 16):

Unfortunately, the desire to win has caused many lawyers to engage in questionable, even unscrupulous, tactics, which are frequently condoned by the legal profession as a whole. Lawyers learn quickly what works well in the courtroom and what does not. What works are techniques that may distort the truth, confuse the jury and make apparent liars out of honest witnesses. The legal system is highly structured and those within it share a culture that emphasizes winning cases rather than doing justice. For too many lawyers the courtroom has become a place of winning cases rather than a forum for discovering truth and serving justice. When the need to win takes precedent over truth, the seeds of wrongful conviction have been sown in the fertile soil of legal indifference, personal greed and public apathy.

The first case dealt with in depth is Donald Marshall Jr., which I dealt with in Part 1 (the last is Steven Truscott, which I discuss extensively here). The next is David Milgaard. In that 1970 Saskatchewan case, the police pressured witnesses to perjure themselves and fabricate testimony about observing Milgaard commit a crime – similar to Marshall (and Truscott). Despite a key witness later recanting his testimony and the presence of a viable suspect (Larry Fisher, convicted in 2000), the federal government refused to admit its mistake for years.

In 1992, the Supreme Court of Canada insisted Milgaard had “a fair trial” yet granted him a new trial due to the new evidence. Eventually, Larry Fisher was charged (in 1997). The state eventually conceded its mistake and paid $10 million compensation in 1999. Milgaard was a mere 16 years old at the time of arrest/conviction (slightly older than Truscott was) He died earlier this year.

The 1992 SCC decision is troubling (paras. 3-4, emphasis added):

It is appropriate to begin by stating that in our view David Milgaard had the benefit of a fair trial in January 1970. We have not been presented with any probative evidence that the police acted improperly in the investigation of the robbery, sexual assault and murder of Gail Miller or in their interviews with any of the witnesses. Nor has evidence been presented that there was inadequate disclosure in accordance with the practice prevailing at the time. Milgaard was represented by able and experienced counsel. No error in law or procedure has been established. At the conclusion of the trial, there was ample evidence upon which the jury, which had been properly instructed, could return a verdict of guilty.

However, fresh evidence has been presented to us. Ronald Wilson, a key witness at the trial, has recanted part of his testimony. Additional evidence has been presented with respect to Milgaard’s alleged motel room confession [to friends]. More importantly, there was evidence led as to sexual assaults committed by Larry Fisher which came to light in October 1970, when Fisher made a confession.

Myopically, the SCC tried to make Ronald Wilson the “fall guy” for this wrongful conviction. They went so far as to charge him with contempt of court for his previous perjured testimony (note that contempt and perjury are almost never used against perjuring Crown witnesses, strangely enough). They later vacated the contempt citation without explanation. Would it have been that difficult for the SCC to concede that the state engaged in egregious misconduct from start to finish?

Milgaard Inquiry (2008) – available here. Incidentally, Milgaard always viewed the Inquiry’s findings as a whitewash – likely correctly.

Like Truscott, Milgaard did not testify. It is unclear whether his lawyers were also blamed for the wrongful conviction on this ground. Hopefully not.

Note that Milgaard’s 1971 appeal was dismissed (R. v. Milgaard, 1971 CanLII 792 (SK CA), with leave to appeal later predictably dismissed by the SCC. No apology forthcoming, I presume.

In 1980, Larry Fisher’s wife told police she thought her husband is guilty of this crime. Ten years later, Milgaard’s appeal counsel (the legendary Hersh Wolch) found out about this through an anonymous tip (timeline). Note the Inquiry begrudgingly admits “that the decision by Saskatoon Police not to follow up on the Linda Fisher report was not reasonable” (p. 13).

Wilbert Coffin is the next case described. It is an interesting case from rural Quebec in 1953. Three American hunters were murdered, and the government – under pressure to pin the murders on someone – settled on Coffin. Despite an incredibly weak Crown case, he was convicted in 1954, and hanged in 1956 (following his predictably unsuccessful appeals). A good illustration of how the prosecutor can manufacture a conviction (and subsequent execution) out of whole cloth. It later appeared that police suppressed proof of his innocence – a letter from one of the hunters dated after Coffin had left – p. 69. It also appears his defence lawyer (Raymond Maher) dropped the ball; promising the jury that he would call 100 witnesses to prove his client’s innocence, he called none.

Guy Morin is another disturbing example of a 1984 wrongful conviction. He was fingered by police because he appeared weird to them. The nature of the crime (a rape-murder) is the same as both Truscott and Milgaard, as well as Sophonow’s. The victim was Morin’s 9-year-old neighbour. The police claimed that an unrecorded part of their interview with Morin made him a key suspect, in their minds (p. 75). As with Truscott and Marshall, police refused to take other viable suspects seriously (note: Calvin Hoover, eventually matched as the perpetrator through DNA, is not even one of the 4 other viable suspects mentioned).

Notably, there was no time for Morin to have done the deed if the victim’s mom got home when she originally said she did. Magically, her timeline then changed by 20-30 minutes – reminding me of similarities with Truscott. Still, the timeline required that he did “all this driving, raping, killing, cleaning and shopping” in 75 minutes – a strong argument of the defence at trial (p. 82).

Eventually, the police extracted what they considered a “confession” from Morin – over a few days, he told an undercover officer that “no one would ever know the real relationship he had” with the victim (p. 81). AHA!

Also, two jailhouse informants claimed that Morin confessed to them. Of course, they were given an incentive by police to testify.

Clay Ruby, the lawyer at the first trial, insisted on a backup position that Morin was insane. The jury ultimately acquitted. Very unfortunately, the crown appealed successfully (R. v. Morin, 1988 CanLII 8 (SCC) – a slim 4-2 majority upholding the majority of the ONCA; note that in the US the State is never allowed to appeal an acquittal). A subsequent appeal based on delay was denied at ONCA, as well.

On the retrial, the judge (James Donnelly – the name rings a bell; his father, Frank Donnelly was likely Truscott’s defence lawyer) was openly and extremely hostile to defence counsel (a team led by the excellent and legendary Jack Pinkofsky). In the interim, the victim’s body was exhumed, and revealed much misconduct on the part of the forensic team (most of the results were exculpatory). There were substantial unsuccessful attempts to have the charges dismissed on the basis of police/Crown misconduct (withheld disclosure). Nevertheless, he was convicted the second time around. Courtroom observers “detected the warmth [Judge] Donnelly displayed towards the prosecution team and the repressed hostility he directed at Pinkofsky” (p. 88 – note his inauthentic obituary stating he never allowed bullying, etc.). Donnelly “encouraged the jury to endorse the most ludicrous testimony of some Crown witnesses while rejecting important defence evidence” (p. 88). In a glaring misstep identical to one taken by the trial judge in Truscott, the judge provided speculation to fill in a major gap in the Crown’s evidentiary case.

In 1993, Morin was surprisingly granted bail pending appeal – only the second person in Canada to do so after a conviction of first-degree murder (p. 89). Thankfully, less than 2 years later – right before the appeal was to be heard – DNA evidence excluded him.

See also Kirk Makin’s book Redrum the Innocent and Real Justice: Guilty of Being Weird: The story of Guy Paul Morin: Faryon, Cynthia J.: 9781459400924: Books – Amazon.ca.

In this context (following the then-recent Milgaard, Morin and Marshall exonerations), the SCC came out with R. v. Stinchcombe, 1995 CanLII 130 (SCC) – theoretically improving the State’s disclosure obligations to accused. Whether or not it affected anything in practice is a different story.

Later Kaufman Commission (1996) – available here.

Thomas Sophonow was wrongly convicted of murder/SA in 1981 Winnipeg. A teenage female employee was murdered, and Sophonow’s description was similar to the man police were lookin for. The witness they relied on was John Doerkeson, who appeared to know a lot about the incident (surprisingly never appeared to be a suspect). Did I mention Doerkeson positively “identified” Sophonow eventually? Sophonow had a strong alibi, and police largely refused to “investigate” this alibi defence. The Crown refused to accept it, in any event. At the first trial, there was a mistrial (hung jury). At the second trial, the Crown witnesses’ evidence surprisingly improved significantly. The Crown also produced multiple lying jailhouse snitches. The judge significantly hampered the defence with caustic comments about its (truthful) theory and witnesses (p. 101). The wrongful conviction was thus manufactured by the Crown and with a significant “assist” to the sworn-to-be-impartial judge.

Defence counsel (the famed Greg Brodsky) won a retrial on appeal with little trouble, thankfully. On the third trial, the Crown Stuart Whitley engaged in the ridiculous tactic of trying on “the glove” himself and claiming that it should fit Sophonow if it fit him, as they were of similar size and build (it had previously not fit Sophonow). The judge (Benjamin Hewak) shockingly agreed with the Crown over defence objection. A further defence witness was sufficiently intimidated by police prior to trial to refuse to testify. After several days of deliberation, the Crown successfully applied to excuse a single juror – clearly the only one harbouring doubt about guilt. A conviction was entered minutes later.

The Court of Appeal properly overturned the conviction, emphatic that Sophonow should not be tried for a fourth time. The Crown unethically appealed the decision to the SCC – thankfully without success.

Sophonow sat in jail for 4 years for a crime he did not commit. The Manitoba government refused to provide any compensation – insisting that he needed to prove his innocence.

Fifteen years later (in 2000), Sophonow was cleared of the accusations and awarded $2.6 million, with an Inquiry struck. He still has no idea what information the state had, as they somehow continue to refuse to share it with him.

Manufacturing Guilt: Wrongful Convictions

We’ve all had clients convicted of crimes when we were sure of their innocence. I have two as I stand here. I can remember them, and they haunt me. You wonder, was it my fault? And you’re bound to blame yourself. In the two cases that haunt me, I have no doubt it was my fault.

But the problem is I’m not the one who has to serve the time because I messed up; it’s some poor individual and likely poor in every sense of the word who is going to have to do my time. And we know it can happen to anyone, from a judge of the Quebec Court of Appeal wrongly convicted of first degree murder in 2012 to a 14 year-old boy in Clinton, Ontario, wrongly convicted in 1959.

– James Lockyer, Sopinka Lecture, CLA conference, November 19, 2021, For the Defence, Aug. 2022, p. 9.

I’ve been reading a lot about wrongful convictions the last few years. There are no shortage of Canadian ones, but I have also been reading about other ones. Adnan Syed is a recent, notorious US wrongful conviction recently all over the news. Jacob Hoggard’s recent conviction and sentence has been all over Canadian news – it remains to be seen, but I have a strong suspicion that it is a legal (and/or factual) wrongful conviction – I wouldn’t mind the trial transcripts, if anyone has access to them. Further, I think the US criminal trial rules are more robust than Canada’s (for example, the state cannot appeal acquittals there), which makes the almostdaily stories of US wrongful convictions that much more concerning. In this post, I will discuss some of the ones I have been reading about (specifically, Donald Marshall Jr., Arthur Lucas and Ronald Turpin), and some common themes I’ve noticed. Please also see my detailed post about Steven Truscott, a grisly 1959 wrongful conviction of a 14 year-old boy (referenced above by the legendary James Lockyer – the other reference is to Justice Delisle.

Donald Marshall Jr.

Donald Marshall Jr. was a young, Indigenous male wrongly accused and convicted of murder in 1971 in Nova Scotia. He was released in the early 80s and it hit the public consciousness in 1986 with the release of the book Justice denied: The law versus Donald Marshall: Harris, Michael: 9780771596902: Books – Amazon.ca. Following the public outcry, a Royal Commission was struck (predictably), which ultimately criticized very harshly just about everyone involved in the case – up to and including the Court of Appeal justices who ultimately allowed the appeal.

I read Justice Denied, as well as a shorter book by Bill Swan, Real Justice: Convicted for Being Mi’kmaq: The story of Donald Marshall Jr.: Swan, Bill: 9781459404397: Books – Amazon.ca (one in a series of books about wrongful convictions – there’s also one on Truscott, Milgaard, Morin, Rubin Carter (U.S.), etc.).

Marshall and a young friend, Sammy Seale, were in a park late at night. Whether they were talking to or attempting to shake down an older man and his friend is not entirely clear. Either way, the older man stabbed Seale, killing him. Marshall ran away, but not before getting a minor gash on his arm from the knife (the man attempted to kill him, too). Marshall gave his story to police, and several friends backed up his story (they didn’t see the actual stabbing, but were there before and after). The police refused to accept Marshall’s story and insisted on pinning the murder on Marshall. They bullied his friends into testifying against him – openly suborning perjury by pressuring his friends into claiming they saw Marshall stab Seale and whatever other details the police insisted on feeding them.

At trial, Marshall was wrongly convicted. Among other things, the trial judge refused to allow the defence to question a key prosecution witness about his recantation of his evidence (right there at the courthouse). A week or so after the wrongful conviction, the young man who accompanied Roy Ebsary (the actual murderer) confessed to police about what exactly happened. The police refused to take it seriously, nor to disclose it to defence.

At trial, the prosecution insisted on showing the gory evidence – in all its detail – to the jury. Not at all for the purpose of inflaming emotions, of course. Another theme prominent in Lucas, below.

The Crown’s expert testified that Marshall’s injury was likely not self-inflicted. At trial, he claimed it was possibly self-inflicted. See what he did there? The Crown further attempted to get the jury to believe that there was no bleeding from Marshall’s injury that required 10 stitches (Justice Denied, p. 133). To that end, he openly misrepresented the evidence of one witness (Maynard Chant) to the jury – Chant had confirmed the arm was bleeding. The Crown wanted the jury to believe he had not bled, so that the blood on his jacket would have to have come from someone else (i.e. Seale). There wasn’t much forensic testing of blood back then – even now, forensic testing tends to not be done (or not disclosed, anyway) in cases where it doesn’t favour the Crown.

Crown tried to use “I hate cops” tattoo on his arm against him (195). Irrelevant bad character evidence clearly as popular then as it is today in manufacturing wrongful convictions.

Defence tried to cross-examine officer about crucial conversation between this officer and another witness (Chant). Crown objected on the basis of “hearsay” – given that the accused was not present for the conversation (144) – a pretty popular tactic (then and now) to try and minimize unfavourable evidence. The judge refused to allow the question, noting that the defence could ask when they questioned Chant. The author points out that it would be just as impermissible to ask the question of Chant as it was (supposedly) to ask it of the officer (146). Thankfully, when the Crown tried that objection later, he was unsuccessful (164). Chant admitted that he did not tell police anything at the time about the identity of the attacker – on 3 distinct occasions. Of course, his earlier statements to police were never provided, as police took even more “liberties” with disclosure back then than they do now.

Some very well-coached Crown witnesses were not providing the hoped-for testimony (regarding time of incident, other people around (151). At the prelim, Chant claimed he saw Marshall pull a knife out of his pocket and stab the victim. At trial, he said he saw him pull something out of his pocket, and he wasn’t sure what it was (155). The Crown “saved” that mistake by later reading out the transcript in the presence of the witness – clearly reminding him of his previous “forgotten” testimony. Suborning perjury again, methinks (159).

The witness didn’t recognize the attacker at the time and didn’t remember what the attacker had “hauled” out of his pocket. After much “gentle” prodding by both the Crown and the judge – mostly without the jury present – he adopted his previous perjury – for the most part (162). The judge also asked more questions at the end of his testimony – further reinforcing the evidence.

Meanwhile, the other main Crown witness, John Pratico, an extremely troubled young man, tried to recant his entire testimony before testifying – in the presence of one of the defence lawyers, the Crown, and Marshall’s father. He said his previous statement that he saw Marshall stab the victim wasn’t true. The Crown reminded him of the penalty for perjury – a common tactic designed to encourage perjury, ironically – if the false story is changed, the accused is threatened with “perjury.” It worked. His trial testimony was more-or-less what the Crown hoped for – pure perjury. He was actually very drunk at the time of the murder – as he admitted at trial (171) – Crown tried to use his admission to drinking to show his “honesty” – 213 – a common pathetic trick these days, as well. He admitted to telling another kid, Tom Christmas, that Marshall hadn’t stabbed Seale. He claimed to see the stabbing – despite being drunk – and that Marshall stabbed with his right hand – he was actually left-handed (note that the cut to his arm was to his left arm).

When defence tried to ask him about his recantation the day before, it was mostly shut down by the judge, “limiting” the defence to “relevant” matters – essentially deciding it was not relevant (how convenient! – 177). No one told the defence about Pratico’s being a patient in a psychiatric institution. The Crown and judge both seemed “convinced” that someone had “tampered” with Pratico, given that he had tried to recant some of his perjury (181). The Crown then brought up Tom Christmas (another Marshall friend) “threatening” Pratico, mentioned the associated charges, then conveniently neglected (he’d “momentarily forgotten” this detail – 183) to mention that he himself had previously withdrawn the charges – as they were obvious lies. Obstruction of justice by falsely accusing Christmas of same, no doubt.

This time, unlike in Truscott’s wrongful conviction, the accused chose to testify in his own defence. Not that it made much difference. He was railroaded all the same.

Credibility, reliability entirely the issues at trial. As in many of these cases, no “hard” evidence. Nothing but lies for the Crown case. As usual, the Crown got a wrongful conviction, and we’re all left scratching our heads wondering how it happened – on one of the rare occasions that we acknowledge a wrongful conviction.

The judge’s charge to the jury was very obviously biased against the accused (suggesting no motive to lie for Chant, for example, and that his flip-flopping was less than material, and that there was no evidence Chant and Pratico were “in cahoots” – 215-8). I guess there wasn’t “evidence” either that it was a complete frame job by the police, either.

The guilty verdict followed a mere 4 hours after the charge to the jury. The judge thanked counsel – praising the Crown for “displaying an attitude that was in the best tradition of the profession of law” (219). Did he mean by the Crown’s obstructing justice, suborning perjury or inducing a wrongful conviction? It’s not clear.

The sentence was life imprisonment – thank goodness capital punishment was abolished in Canada a few years before (de facto abolished in 1963, formally in 1976).

A few days after the wrongful conviction, the police had a witness (MacNeil) who actually witnessed the murder try to tell them what he knew. He was told to get lost, essentially – by both police and the Crown, after police very briefly questioned the actual murderer (believing his pathetic and self-serving denial and after he passed a lie detector test, despite having a very related criminal record involving a knife). Also, some of the Crown witnesses had previously told police versions of events similar to what the truth actually was – a truth practically beaten, of course, out of them by the police and Crown, and not disclosed to defence). Of course, defence was not told of any of this. Meanwhile, Marshall had been appealing his conviction – this information may have been helpful on a fresh evidence application.

Marshall had to lie (pretend he was guilty) to satisfy the prison officials to move him to a medium security institution (this is extremely common nowadays, too, particularly at parole hearings – heaven help a wrongfully convicted person who refuses to “admit” guilt or otherwise confess).

In 1981, Marshall was introduced by chance to the person who witnessed the murder. He then wrote to the actual murderer (Roy Ebsary), pleading with him to admit to his crime. He wrote, “I pray that you’ll be honest about it and ask God to give me the strength to forgive you and to forgive the people that were involved with my Trial” (308). Finally, the police opened a proper investigation into the wrongful conviction, and quickly determined the truth. He was finally allowed out on parole in 1982 – once it started to become obvious that he was, in fact, innocent.

After the fresh evidence hearing on appeal, both Crown and defence recommended an acquittal. The Crown’s factum included this gem: “it seems reasonable to assume that the public will suspect that there is something wrong with the system if a man can be convicted of a murder he did not commit” (366). YA THINK?

Apparently, the new story that Marshall provided to the new RCMP investigator Harry Wheaton was that he and Seale were attempting to rob Ebsary when the latter stabbed them. This was consistent with the story Ebsary finally told the investigator. Previously, Marshall had testified that they had merely offered cigarettes to Ebsary when Ebsary got angry at them. Bill Swan strongly criticizes this version (of a robbery) as having been pressured out of Marshall by the investigator in Marshall’s eagerness to get released from prison, even though it may have not been the truth (p. 155). Apparently, the Commission in 1989 was also highly critical of this detail, finding that Wheaton had placed stress on Marshall to induce this “detail.” It also served to partially absolve the system of its misconduct and greatly reduced the amount of compensation he was entitled to.

The Crown went on to blame the accused for his wrongful conviction – as appalling as it was false. Somehow, to uphold the “integrity” of the system, we need to blame the victims of it. What a joke. No mention at all of any of the perjury suborned by both the Crown and police, surprisingly. Shockingly, the 5 justices of the Nova Scotia Court of Appeal endorsed the Crown’s historical revisionism, disgracefully agreeing with the Crown that his wrongful conviction was entirely his fault (paras. 79-85, emphasis added – R. v. Marshall, [1983] N.S.J. No. 322 (NSCA) (QuickLaw/Google) – 48 pages):

Donald Marshall, Jr. was convicted of murder and served a lengthy period of incarceration. That conviction is now to be set aside. Any miscarriage of justice is, however, more apparent than real.

In attempting to defend himself against the charge of murder Mr. Marshall admittedly committed perjury for which he still could be charged.

By lying he helped secure his own conviction. He misled his lawyers and presented to the jury a version of the facts he now says is false, a version that was so far-fetched as to be incapable of belief.

By planning a robbery with the aid of Mr. Seale he triggered a series of events which unfortunately ended in the death of Mr. Seale.

By hiding the facts from his lawyers and the police Mr. Marshall effectively prevented development of the only defence available to him, namely, that during a robbery Seale was stabbed by one of the intended victims. He now says that he knew approximately where the man lived who stabbed Seale and had a pretty good description of him. With this information the truth of the matter might well have been uncovered by the police.

Even at the time of taking the fresh evidence, although he had little more to lose and much to gain if he could obtain his acquittal, Mr. Marshall was far from being straightforward on the stand. He continued to be evasive about the robbery and assault and even refused to answer questions until the court ordered him to do so. There can be no doubt but that Donald Marshall’s untruthfulness through this whole affair contributed in large measure to his conviction.

We accordingly allow the appeal, quash the conviction and direct that a verdict of acquittal be entered.

No doubt this dubious opinion from the NSCA adversely affected his compensation. It also reflects the grossly unethical inability of “the system” to admit fault – also something seen nowadays all the time. The judgment is – correctly – called “pitifully grandiose and self-serving” (369). The “judgment was quickly assailed in the press as a political rather than a judicial document, a mere whitewash” (369). Does anyone criticize the judicial system like that these days? Even a whisper that our justice system might be slightly political is generally roundly denounced these days – blasphemy! In Canada, of course – in the US, I understand criticism of the justice system is allowed.

When it came to compensation, the Crown refused to release its file to Marshall’s lawyer – adversely affecting his quantum of compensation (the less of their misconduct he know of, the better – from its perspective). He was finally offered $270,000 in 1984 – inclusive of his legal bills – an absolute pittance, which he accepted, because he was desperate. He also needed to waive the right to sue.

The actual murderer was eventually sentenced to one year of jail for the cold-blooded murder, the same offence a young Marshall was wrongly sentenced to life in prison for (R. v. Ebsary, 1986 CanLII 4648 (NS CA).

The entire 7-volume 1989 Royal Commission results appear to be available here. A brief 44-page synopsis is available here. It includes the following scathing comments about the Nova Scotia Court of Appeal (reproduced at Bill Swan, p. 155):

We are at a loss to understand how the Court of Appeal could conclude that there was no miscarriage of justice when, on the evidence before it, Marshall’s conviction was secured by perjured testimony obtained through police pressure, and his counsel was precluded from full cross-examination because of lack of disclosure by the Crown.

For any citizen to spend eleven years in jail in a federal penitentiary for a crime he did not commit constitutes – even in the narrowest sense – a miscarriage of justice in the extreme.

Apparently, the Canadian Judicial Council struck an investigation into the Court of Appeal’s conduct – almost unheard of these days on wrongful convictions, unfortunately. See p. 36 of its findings, strongly criticizing the NSCA for stating that it was not a miscarriage of justice. Despite the NSCA’s “legal error” and “inappropriate comments,” the CJC decided not to remove the judges from office (p. 39). Ah well. Shocking result when compared to that of Judge Camp – a blog post I need to get to already.

See also A scathing report | Maclean’s | FEBRUARY 5, 1990 (macleans.ca) and Eleven years of hell | Maclean’s | SEPTEMBER 8, 1986 (macleans.ca).

Another thing was his junior appeal lawyer (Stephen Aronson) worked mostly pro bono and suffered from burnout, quitting law after the experience. Similarities with Ross Mackay, below.

Arthur Lucas and Ronald Turpin

I read a terrific book about famed defence counsel Ross Mackay: Ross Mackay, The Saga of a Brilliant Criminal Lawyer: And his big losses and bigger wins in court and in life: Batten, Jack: 9781988824390: Books – Amazon.ca (2020). He is also referred to by James Lockyer in his 2021 Sopinka Lecture quoted above. A terrific defence lawyer who battled personal demons (addictions and whatnot) and died at 51 years old. The above two convictions were the last executions in Canada, and Mackay defended both (2 weeks apart, mind you) in 1962. The first (Lucas) seems to be almost certainly a wrongful conviction, while Turpin’s is 50/50, I’d say. See The end of the rope: The story of Canada’s last executions | The Star

Lucas was accused of a double murder in Toronto. There was almost no evidence of his guilt, other than a ring at the scene which had belonged to him (Lucas claimed to have pawned the ring). Police officer (Fallis) had seen Lucas in a diner the morning of the incident and would have made a helpful alibi witness had he been willing to assist Mr. Lucas (spoiler alert: he wasn’t).

On the morning of Day 1 of Lucas’ trial, the experienced Crown (Henry Bull) informed a young Mackay that he wanted to advance a last-minute motion to try the accused on both victims together. The main concern for Mackay was an extremely graphic photograph would now be entered into evidence before the jury, where it otherwise wouldn’t need to be. Helpfully, the Crown opined that it would “do no injustice to the accused” (p. 111). Technically, the judge denied the Crown’s application (in that he did not put both murders on the same information), but he allowed the application insofar as to allow the photographs from the non-related murder into the first trial. Ross had “the horrible feeling that Bull had suckered him. Bull was going to get the explicit and grisly photo of Newman shown to the jury” (p. 113).

When Mackay later objected to the photos on the obvious grounds of prejudice, Bull insisted they were needed to show the location of the injuries. Justice McRuer agreed with Bull “every step of the way” and went so far as to asset “I am quite sure the jury will not have their minds inflamed.” Did I mention, the judge was Jim McRuer AKA “Hanging Jim” – celebrated in this book, and later Chief Justice of Ontario.

Then, Bull introduced into evidence the blood-soaked bedsheets, leaving them in the courtroom for the next few days. Mackay later said, “there was no doubt in my mind that the stench of the bloody sheets effectively denied Lucas a fair trial” (p. 114). Duh!

For Lucas’ cross-examination, McRuer often joined Bull “in a kind of tag-team questioning” (p. 121). They focused on Lucas’ lifestyle as a pimp – entirely irrelevant to the charges and entirely prejudicial bad character evidence, likely to sway the jury toward conviction (surprise!). A law student observing the trial (Nancy Morrison – later a judge in BC) observed that the words being “hammered” at the jury throughout the trial were “pimp” and “Detroit.” To her, it seemed that Mackay “got no breaks whatsoever from the judge. But the Crown did” (p. 123).

During Mackay’s closing submissions, McRuer interrupted to admonish him that circumstantial evidence had more substance than Mackay was allowing for, and to accuse him of conjecture (p. 125).

The Crown’s closing (predictably, not at all interrupted by McRuer) suffered from some major flaws, including suggesting he had called all the evidence had had promised to (in fact he hadn’t; he had promised to exhibit slightly bloody clothing of Lucas’ and hadn’t) and suggested that Lucas’ testimony was new (in fact, he had given largely the same story to Detroit police officer McCarty – Mackay later regretted not subpoenaing McCarty to testify – although he likely would not have attended – and when appellate counsel later wrongfully blamed Mackay for the wrongful conviction it was largely on this ground).

A mere 2 weeks after Lucas was wrongfully convicted and sentenced to hang, Ronald Turpin’s trial began. The trial judge (George “Bill” Gale – also later Chief Justice of Ontario) insisted on starting the trial earlier – to Mackay’s great dismay and despite his desperate plea not to do so.

Turpin was charged with murder for killing a police officer (Nash). He insisted it was self-defence and the officer had shot first. He was well-known to police, and had good reason to believe they would kill him on sight, as he was considered armed and dangerous.

On the first day of trial, Mackay tried to have the trial moved out of Toronto, and hence adjourned by default. Gale refused the application, “seizing on the one misstep Mackay took in his pleadings” (p. 141). Examples of pre-trial negative publicity cited by Mackay included one in a tabloid called “Hush Free Press,” with Gale opining that it was “a rag circulated amongst persons who have peculiar tastes.”

The Crown was Arthur Klein. The defence was essentially self-defence. Turpin testified, obviously.

In Gale’s charge to the jury, he “left no doubt which side he preferred” (p. 157).

“You heard of his way of life,” Gale said of Turpin. “Is he likely to tell a falsehood to protect himself at this trial? Was he guilty of some contradictions in his own evidence?”

Gale couldn’t find a single item in Turpin’s story that could be described as credible. Many of the details were implausible. Some defied commonsense. Predictably Gale ridiculed Turpin’s version of the opening minutes of his encounter with Nash when, according to the picture that Turpin drew, Nash balanced his police flashlight, his own gun and Turpin’s gun, the keys to the truck […]

In Gale’s further opinion, the Crown had proven beyond a reasonable doubt that Turpin intended to kill Nash or to do him bodily harm that he knew was likely to cause death. Gale explained to the jurors that these were just his personal conclusions. The jurors could make up their minds for themselves. Then, rather as an afterthought, Gale offered a precis of Mackay’s case for the defence.

“It wasn’t very hard to see where things were headed,” Mackay’s assistant, Steve Posen, said years later. “The attitudes of Arthur Klein and Justice Gale were leading in the same direction, which was a conviction of capital murder.” […]

With the greatest of respect,” Mackay said, “Your Lordship has left the impression that there is nothing favourable to say about Turpin.”

“I am inclined to think that is so, Mr. Mackay,” Gale said.

I pause to note that judicial comments showing bias toward the Crown would appear to be entirely improper (note that the same thing happened in Truscott, Marshall, Lucas, etc.). It is appalling that this was (and/or is) acceptable to anyone.

Gale said Mackay had “brilliantly defended” Turpin. McRuer had said Mackay was “a credit to the profession” in his pro bono defense of Lucas (Legal Aid – as terrible as it currently is – practically didn’t exist back then). Nevertheless, Mackay was somehow “blamed” for the Lucas wrongful conviction.

Appellate counsel Walter Williston decided to make Mackay the “fall guy” for the Lucas wrongful conviction (p. 164). He was unsuccessful at both levels of appeal, although at the SCC, one justice (Cartwright) properly thought it was a wrongful conviction and provided a lone dissent. At the Ontario Court of Appeal (QuickLaw/Google – you’re welcome), “Laidlaw admitted that McRuer erred pretty significantly, all his errors being prejudicial to Lucas, but it was just too bad that these errors weren’t substantial enough to add up to a miscarriage of justice. And in perhaps the most egregious of McRuer’s errors, namely his failure to catch Bull’s false claim about the “damning evidence” of the bloody clothing, the ultimate blame lay, not with McRuer [nor Bull], but with Mackay” (p. 167).

Kerwin, for the SCC majority, found that “everybody made errors during the trial. Bull did, McRuer did, and so did Mackay. Probably, Kerwin appeared to say, Mackay’s errors were the most damning of all. Mackay should have brought Inspector McCarty’s exchanges with Lucas to the trial judge’s attention. That would have eliminated the prosecution’s claim that Lucas invented his own story of innocent behaviour at the time of the killing. It might have made a different in the jury’s decision. But it was too late for any of this, too late to introduce the McCarty material” (p. 169).

Mackay struggled with his demons moreso following these convictions and hangings. The “nightmares with the murmuring soundtrack of the Lucas and Turpin voices still assaulted him every time he lay his head down” (p. 170). Eventually, Mackay’s practice improved, although he was later disbarred for trust accounting irregularities. A few years later, he applied and was re-admitted, but his alcohol (and/or gambling) addiction eventually devolved into a cocaine addiction, and he died of cancer at 51 years old.

Mackay was wrongfully accused of ineffective assistance of counsel while the judges and Crowns were essentially let off the hook – a recurring theme, I’ve noticed.

Sophonow, Morin, Milgaard, etc.

Let’s keep going – shall we?

Eh, I’m already close to 5,000 words (8 pages single-spaced). I think I’ll stop here and aim to continue with a Part 2 in coming weeks, focusing on the following books: Manufacturing guilt: Wrongful convictions in Canada: Anderson, Barrie: 9781895686937: Books – Amazon.ca, Convicting the Innocent: Where Criminal Prosecutions Go Wrong: Garrett, Brandon L.: 9780674066113: Books – Amazon.ca, and Duped: Why Innocent People Confess – and Why We Believe Their Confessions: Kassin Ph.D, Saul: 9781633888081: Books – Amazon.ca.

The Trial of Steven Truscott – How Little has Changed since 1959

“And with the greatest respect, my lord, I submit that the jury listening to your charge could not help but get the impression that you consider a verdict of guilty was warranted on the evidence,” Steven’s lawyer said. It was as close to calling a judge biased as a lawyer could go.

The judge’s five-word response was stunning.

“What is wrong with that?”

I recently read the excellent 1966 book by Isabel LeBourdais, The Trial of Steven Truscott (Amazon). It details a wrongful conviction from 1959 – a grisly rape/murder of a 12 year-old girl for which a 14 year-old boy (Truscott) was wrongfully accused, convicted and sentenced to hang. Thankfully, the sentence was soon commuted to life imprisonment and he was released after about 10 years of wrongful imprisonment. It appeared to capture the public’s imagination – given the nature of the tragedy of both the murder of the victim and the imminent hanging of the other victim (the wrongfully charged and convicted 14 year-old). The commutation of the sentence to life imprisonment helped to somewhat lessen the consequences of the tragedy.

See “Requiem for a fourteen-year-old”, a haunting poem by journalist Pierre Berton, published in the Toronto Star on Oct. 5, 1959 – a mere six days after the sentence, and quoted in LeBourdais’ book (“Just eye for eye and tooth for tooth/Tooth for tooth and eye for eye:/A child does murder/A child must die. […] Save your prayers for the righteous ghouls/In that Higher Court who write the rules/For judge and jury and hangman too:/The Court composed of me and you.”). Apparently, Berton received a ton of hate mail for it (p. 212), including some wishing horrendous things on his own children.

Truscott’s wrongful conviction may never have reached the public consciousness as such if not for the superhuman efforts of Isabel LeBourdais (she was almost unknown before her book). Apparently, the SCC, in its unhuman arrogance, refused to allow her a seat[1] to watch the “retrial” or Reference. It apparently took her a long time to find a publisher for her book, given that she was – gasp! – critical of our justice system[2]. Publishers (and their lawyers) were concerned of being found to be in “contempt of court” if they published her critique and they all turned her down, until she eventually found a willing publisher. Has anything changed in the 55 years since then? Absolutely not! The hubris of our judicial system – and the sheer horror that accompanies any criticism of it (unless of course adjudged to be politically correct, such as Elaine Craig’s unjustified and vague critiques) – continues to be astounding. Note the book is reviewed: “The book is a “terrible revelation of the bumptious arrogance, the pretence and the ritualistic nonsense which afflicts the Canadian courtroom“” and “Crown counsel, she said, was antagonistic, vindictive, and interested only in securing a conviction – wasn’t interested in the cause of justice at all” – Innocence Lost, pp. 65 and 66, emphasis added.

A brief history of the case: Truscott told police when the girl had gone missing that he had given her a bike ride to the highway, and that he had seen her get into a car. The police and Crown – instead chose to proceed on the assumption that he never took her to the road, but had instead gruesomely raped and murdered her in the nearby bushes – where she had been found a day or two later. Whether this choice of the prosecution was because they had no other suspect and almost no real evidence (hence a bit desperate) or was a product of their sick minds is difficult to know. There is some indication in the literature (e.g. Real Justice) that there was a viable suspect that was not investigated, given his military rank.

In any event, the media quickly bought into this absurd theory. So did most of the townspeople of the little town he lived in. Clearly, so too did the judge and jurors at his 1959 local trial – see chapter XI of the book for eye-raisingly alarming misrepresentations and “spin” by the judge in his charge to the jury at the end of the trial – some notable examples include commenting on Truscott’s appearance at trial as apathetic (“You will ask yourselves and you will ask yourselves the reason if this boy is guilty, why he has shown such calmness and apathy” – dismissed by the SCC, though slammed by Hall J. in dissent), misstating the evidence on multiple points, showing significant favouritism to the Crown’s case, “experts” and witnesses, even suggesting an inference not available in the evidence – that if Truscott was not lying about taking her to the highway – as the Crown had so strenuously argued he was lying – he might have also taken her back, as someone must have(!). You’ll never believe that the judge (Justice Robert Irvine Ferguson – bio likely here, he had 9 years of judicial experience at the time of trial) later tried to get LeBourdais (and Berton) in trouble for writing her book (recommending a prosecution for public mischief, given her “thoroughly dishonest piece of writing” – in his opinion – and “vilification of the courts” – surprisingly not pursued by the Attorney General – without a doubt no one dared complain about the judge himself and if they had, they would have been punished)! Don’t get me started on the Crown’s behaviour at the trial, which objectively should have been more than sufficient for him to have been disbarred (one example was a sly mention to the jury of a statement made by Truscott that was later ruled inadmissible – even the judge said the Crown had “made a mistrial” with his idiotic and unethical comment – unfortunately, it was overlooked later in the trial and surprisingly found to be insufficient for a new trial according to the SCC). I can guarantee you he faced absolutely no censure – I’d be surprised if he (Glen Hays, Q.C.) wasn’t promoted and/or appointed a judge after his unethical behaviour at trial. Well done!

In the book, the overwhelming presumption of guilt that appeared to surround these charges (both at the time of trial and much later, clearly) is extremely obvious. She points out the editor of the local paper telling her he didn’t know a soul who didn’t believe in Truscott’s guilt.

After conviction, the Ontario Court of Appeal refused to overturn the conviction (a 5 member unanimous panel – Regina v. Truscott, 1960 CanLII 474 (ON CA), as did the Supreme Court (shocker!) shortly thereafter (not reported, apparently they dismissed it 2 days after it was filed, according to Real Justice). Following the controversy following the release of the book (it had 4 editions in 1966 – likely a bestseller), the SCC (very reluctantly, it appears – note LeBourdais’ accurate prediction that the SCC would not be prepared to overrule its earlier decision) agreed to hear a retrial (a Reference – apparently the first time the SCC had ever allowed new evidence on an appeal). In the SCC, Truscott testified (he didn’t at trial – not that, God forbid, that was used against him in any way, shape or form, at the trial). In any event, the SCC found him to be incredibly unreliable (“Since the evidence was given at trial, Truscott has testified on the reference. We refer herein to the parts of his testimony which simply cannot be believed” – emphasis added. Why can’t he be believed, you ask? Because, among other things, the SCC was convinced the killing happened where the body was found – definitely not true, and the book goes to great pains to show why this is not the case) and appears persuaded by the Crown’s child witnesses, most of whom were lying through their teeth – establishing that the SCC is just as bad at assessing credibility as it is at both applying the law and amateur sleuthing. Truscott had the benefit of G. Arthur Martin, Q.C. as his lawyer at the SCC – probably the most respected criminal law mind in Canadian history. Note the Crown had no doubt some of the best lawyers in the country representing it at the SCC (W.C. Bowman Q.C., D.H. Scott, Q.C., and federal deputy justice minister D.H. Christie, Q.C. – later associate chief judge of the Tax Court [3]) – yet it didn’t disclose critical information (such as Dr. Penistan’s recent, “agonizing reappraisal” nor the presence of a 4th witness, Karen Daum, who corroborated Truscott’s 3 other witnesses – each of whom the Crown had claimed were liars).

There was a vicious “battle of the experts” at the SCC, along with various new evidence adduced (almost entirely thanks to LeBourdais’ fantastic book). After a multiple day hearing, the SCC reserved its decision. When it returned its decision (Reference Re: Steven Murray Truscott, 1967 CanLII 66 (SCC)), it dismissed the appeal, by an 8-1 margin. The lone justice apparently prepared to acknowledge innocence when it stared him right in the face was Justice Emmett Hall (highly respected and not a member of the SCC when the first appeal was dismissed).

The case more-or-less disappeared from the public limelight afterward. In 2000, a Fifth Estate episode and very hard work by Innocence Canada (lawyer James Lockyer, among others, and extensive new entomological evidence), the ONCA agreed to reopen the case, overturn the conviction and enter an acquittal in its place (Truscott (Re), 2007 ONCA 575). The poor victim was even paid a few million dollars of “hush money” by the government for his troubles. As far as I know, the SCC has not yet apologized (and why should they, given that they’re infallible) – nor have they even acknowledged their horrendous, inexcusable and bone-headed role in this awful wrongful conviction.

What I find most shocking about the SCC’s decision was its conclusion that the weight of the evidence – including the new evidence – points to guilt and that “parts of his testimony simply cannot be believed” [4]. How that finding is compatible with any of the 8 being, er, the most intelligent judges in the country is simply mind-blowing[5]. A quick review of the book (and/or the new evidence) is all that is needed to see that the conviction was incredibly weak. How that could be missed can only be explained by tunnel vision, or at best – the presumption of innocence being an absolute joke[6] (of course, the SCC likely didn’t read the book – why would they? Definitely want to make sure the Crown gets a “fair shake” at the hearing).

There were a number of issues that the Crown relied on to obtain the conviction, including but not limited to:

  1. Numerous eyewitnesses (mostly children) that swore up and down that they had or hadn’t seen the accused at the appropriate times (on the bridge, biking back, etc.). Of course, there were many other children testifying for the defence, but they were mostly “liars.” The Crown witnesses were clearly tampered with and coached excessively by police and/or Crown, and most were almost certainly lying (see Real Justice). Nevertheless, their testimony was considered extremely reliable – by the Crown, trial judge, jury, and clearly the SCC on both occasions. In fact, you can say the SCC largely “hung its hat” on this absurd and tenuous testimony in 1967, essentially finding that there was no other way to explain such convincing “evidence” of guilt. See here.
  2. The stomach contents evidence – the Crown relied on very shaky “evidence” at trial from pathologists (primarily Dr. Penistan) who insisted that the stomach contents put the time of death precisely between 7:15-7:45 PM that evening, which tightened the grip “like a vise” around Truscott, according to the trial Crown in closing argument. There were significant weaknesses in this nonsense, and some of it was exposed by defence at trial, especially by its own expert, and also by LeBourdais in her book (extensively – suggesting the time of death was quite possibly at least a few hours later – Innocence Canada notes that Dr. Penistan’s draft notes at the time of the autopsy – not disclosed to defence – put the timeframe after midnight that evening, 5 hours later than the time Dr. Penistan swore up and down at trial that the death occurred). On the 1967 Reference, countless experts were called – by both sides – with at least one Crown “expert” making a complete ass of himself thanks to rigorous (and legendary) cross-examination by G. Arthur Martin (excerpted in just about every Canadian advocacy textbook – neglecting to mention that the “ammunition” for this lethal cross-examination likely came directly from LeBourdais’ book) – not that the inconsistencies appeared to be recognized by the SCC. Somehow, this wasn’t sufficient for the SCC to overturn the conviction. Note that on the 2007 reference, a big part of the decision focused on newer, entomological evidence that also destroyed the Crown hypothesis. Did I mention that Dr. Penistan had an “agonizing re-appraisal[7] of his opinion prior to the 1967 Reference (right around when the book was released – coincidentally!), which was never mentioned to the defence, and he was (surprisingly!) not called at the SCC Reference? Note that the Crown even had the nerve to call further evidence at the 2007 Reference supporting Dr. Penistan’s trial perjury/lies – thankfully dismissed by the Court (paras. 165-166). Of course, theoretically improved (as of the ‘90s) Crown “disclosure obligations” should fix that! (sarcasm).
  3. Genital lesions on Truscott – the Crown made a very big deal out of these at trial, and is utterly demolished in the book. Thankfully, the Crown appeared to ignore the issue at the Reference, and practically conceded that it was entirely BS. Apparently, 5 dermatologists further testified at that Reference (all for defence) that the Crown trial doctors (including Penistan, whose other testimony should also be suspect as a direct result of these lies) were full of s**t – at best – who cares, right?
  4. View of the highway from the road – Truscott had told police that he could see the colour (not the numbers, as was wrongly claimed at trial by both the Crown and judge) of the license plate that picked up the girl from where he stood on the road. Misleading Crown evidence “showed” he was a liar – thoroughly debunked in the book. Insufficient – surprisingly – for a new trial at the SCC (downplayed there altogether), despite the egregious nature of this bogus evidence and the very significant negative (or positive – depending on your perspective) effect it certainly had at trial.
  5. There was also some crap about Truscott telling a kid (Arnold “Butch” George) to back up his “alibi” defence – this is also thoroughly demolished in the book. Note that George had originally told police that he had seen Truscott and retracted it the next day – once the police began homing in on Truscott as the suspect – and then claimed Truscott had told him to lie for him. Of course, dangerous for Truscott’s credibility and “character.” Concerningly, not criticized by SCC.
  6. There was another witness (a Jocelyne Gaudete – incredibly unreliable) who made up a story about Truscott trying to get her to see some calves (or ponies – I’ve lost track at this point) with her – you’ll be surprised to know that her evidence was relied on heavily by the Crown to secure the conviction (see here for weaknesses in her evidence – known to police and/or Crown at the time)! Her story included that Truscott had told her not to tell anyone – also (false) bad character evidence. Of course, more awful bad character evidence, which I’m sure courts these days would excuse as necessary for “narrative,” as the SCC majority blatantly did in the 1967 Reference.
  7. The accused did not give evidence at his trial – definitely not allowed to be relied upon to establish guilt (in theory), but in practice, it very often is (to this day!) – in Canada, anyway[8]. Note the second sentence of the 1967 reference (emphasis and brackets added): “Most of the evidence was circumstantial [ya think?] and the accused did not give evidence at his trial [therefore? …]”.
  8. Media – in fact, allowed to be tried as an adult to entitle the media to broadcast his “guilt” as early and as often as it pleased and to allow for the death penalty (Regina v. Truscott, 1959 CanLII 496 (ON SC) – note the ironic finding that “in a matter of this kind where public sentiment may have been aroused, the trial and disposition of the matter shall be in the ordinary course and free from any criticism” – emphasis added) – apparently, media allowed to report all of the details at the trial – despite the youth of the accused and the blindingly obvious prejudicial nature of this coverage.
  9. Have a load of this, from the SCC: “We do not think that there is any doubt about the place of death. The position of the body, the scuff marks and a footprint at the foot, and the flattening of the vegetation between the legs, indicated that the act of rape took place there.” This is dead wrong actually – it was definitely not the place of death, as established in the book, and conclusively at the 2007 Reference.
  10. The trial judge’s charge to the jury included (emphasis added) “It will be for you to say whether you accept Doctor Penistan’s theory, an Attorney-General’s Pathologist of many years’ standing, or do you accept Doctor Brown’s [defence] evidence.” Biased much?
  11. Blame defence counsel! Defence didn’t insist on a mistrial at the time – due to some blatant misconduct from the Crown that the judge at the time suggested called for a mistrial. Same with other clearly biased words from both the Crown and judge. Whether or not the SCC explicitly blames defence counsel, it certainly penalizes the victim, which further adds insult to injury. It’s very simple, SCC – glaring mistakes made by Crown, judge, etc. are grounds for a new trial – whether or not defence counsel objected at the time. Please don’t continue to blame the accused and/or his counsel (and visit the consequences upon them) for a grossly unfair system that they’ve done nothing to establish.

Here are some lessons I think we can all take from this awful wrongful conviction (ahem, SCC) – adoption of which may slightly reduce the odds in the future of this kind of travesty, considering that so little has actually changed in our laws or approach to criminal justice and trials in general since 1959 (other than abolition of death penalty, improved theoretical right to disclosure; otherwise, convictions have been made arguably a lot easier by “relaxing” of evidentiary rules and the quagmire that is “credibility contests” these days and denial of almost all possible defences for sexual assault charges – with ss. 276, 278, and the refusal to allow most defences by somehow calling them “myths” as I’ve blogged about extensively in the past):

  1. Presumption of innocence is a thing – it’s time to actually take it seriously, not just pay lip service to it, as we’ve been doing for a mere century or two. Maybe a complainant shouldn’t be defined as a “victim of an alleged offence” according to our Criminal Code (pre-conviction, s. 2, emphasis added). Same goes for ethical and fair conduct by the Crown and courts (of all levels – I should stress);
  2. Watch out for lying/perjuring “experts” – they’re fairly common, it appears;
  3. Watch out for lying/perjuring witnesses – these are also fairly common in Canada, it seems. Perhaps they should even suffer consequences on the odd occasion (blasphemy – I know). The excessive and obsequious “deference” regularly afforded to findings of fact as it relates to credibility of complainants in sexual assault (and other trials), as re-affirmed in v. G.F., 2021 SCC 20, is simply a travesty and practically explicitly invites and endorses wrongful convictions en masse. For example, an appeal of a sexual assault conviction in which some of the complainant’s testimony was found to be concerning, troubling, questionable, and a little unsettling (exact words used by the trial judge – R. v Saddleback, 2020 ABPC 168, at paras. 59, 60, 71) was found to be “frivolous” at the bail stage (R v DRS, 2021 ABCA 171, para. 13) – full disclosure, I was counsel at both levels of court;
  4. Bad character evidence against accused continues to be downplayed or ignored by appellate courts (including the SCC). It would be nice if they would start taking it even slightly as seriously as similar “evidence” against a complainant (e.g. “myths,” “whacking the complainant”, etc.);
  5. Media – they also need to at least pretend to respect the presumption of innocence. They should not be allowed to regularly plaster the names, faces and details of allegations of presumptively innocent accused persons – the same way they are almost never allowed to do so regarding the complainant;
  6. Disclosure – defence should have access to the entire police file, not just the parts the police and/or Crown deem disclosable;
  7. Anything else?

I’ll add below LeBourdais’ excellent foreword to her book (I should add the book should be required reading for all first-year law students, Crowns, academics, and judges of all levels) and Justice Hall’s dissent on the 1967 SCC Reference – emphases added.

Foreword: what does it really mean when a judge, under the law, instructs the jurors at the end of a trial that the accuse does not have to prove his innocence because the onus of proof is on the prosecution and that if there is any ground for a reasonable doubt the accused must be acquitted?

It means that we, the people, through our legislatures and our law courts, believe in the fundamental right of every one of us to the protection of his personal freedom and respect for his integrity. It means that regardless of any apparent circumstances those who accuse him of breaking the law must prove their case by clearly incriminating evidence, or it is they who are the transgressors against a fellow human being, not he.

Most of us give very little thought to the manner in which justice is administered. We leave it to the police, the magistrates, the judges and others involved in judicial processes. We chuckle at the time-worn jokes that a jury consists of twelve men chosen to decide who has the better lawyer, or that penitentiaries are inhabited solely by men who declare that they were unjustly convicted. But a news story about a crime, followed by someone’s’ arrest, interests us only slightly, for we usually take it for granted that the accused is guilty or the police would not have arrested him. We thoughtlessly line ourselves up with the police as judge, jury and even executioner.

How often does the most important fact enter our heads: that the accused is legally an innocent man until after he has been proven guilty?

It is customary for a judge to inform a convicted man that he has been found guilty after a fair trial, and for anyone who writes about a trial to assume that it was fair. By definition a fair trial is presumably one in which both sides have had legal counsel and the court was objective and impartial. That in many trials the scales are heavily weighted against the accused is admitted by every serious student of the subject. Therefore the accused has in fact had to prove his innocence regardless of what the judge might duly have said about the law in his address to the jury at the end of a trial.

This book is written in the belief that the law is a good law and should always give to the accused the advantage inherent in the presumption of innocence and not just lip service to that right, so that right is not a horrible, grim game with the accused tossed back and forth like a ball amid barrages of melodramatics and rhetoric. If the onus of proof is on the prosecution from beginning to end, it is always the accusers who must justify themselves, not the accused.

Justice Hall’s dissent:

Having considered the case fully, I believe that the conviction should be quashed and a new trial directed. I take the view that the trial was not conducted according to law. Even the guiltiest criminal must be tried according to law. That does not mean that I consider Truscott guilty or innocent. […]

It was inevitable that this horrible crime would arouse the indignation of the whole community. It was inevitable too that suspicion should fall on Truscott, the last person known to have been seen with Lynne in the general vicinity of the place where her body was found. The law has formulated certain principles and safeguards to be applied in the trial of a person accused of a crime and has throughout the centuries insisted on these principles and safeguards being observed. In the great majority of cases adherence to these fundamentals is not difficult but in a case like the present one, when passions are aroused and the Court is dealing with a crime which cries out for vengeance, then comes the time of testing. It is especially at such a time that the judicial machinery must function objectively, devoid of inflammatory appeals, with the scales of justice held in balance.

A bad trial remains a bad trial. The only remedy for a bad trial is a new trial. Accordingly, the validity of the trial is, in my view, the dominant issue. With deference to contrary opinion, I see no purpose in erecting a massive and detailed structure of evidence, inference and argument confirming a verdict that has no lawful foundation upon which to rest. […]

by his failure to stop Crown Counsel when in his speech to the jury he advanced subtly worded inflammatory arguments which should have been repudiated on the spot […]

The errors and inflammatory arguments were too numerous and too integrated into the whole of the case as to be capable of coming within the exception provided for by that section. […]

I do not find it necessary to go in detail into the medical evidence given on the reference in this Court. This has been done in the majority opinion and is seen to be contradictory in the extreme. This much must, however, be said that it tends strongly to increase the doubt a juryman may honestly have had as to the time of death, if properly charged […]

The reference to ‘apathy’ in this passage by the learned judge was purely gratuitous. The word itself or a condition or conduct so describing Truscott does not appear in the evidence. It had been urged that his appearance and conduct were normal. The learned judge wrongly transposed ‘normal’ into ‘apathy’. The dictionary definition of ‘apathy’ is ‘insensibility to suffering or feeling’. ‘Apathy’ in relation to the crime in question here was a description highly damaging to the accused. […]

A trial judge has the right to express his own opinion or opinions in the course of his charge to the jury, but he has the duty to put the defence of the accused fairly to the jury. This he did not do on this branch of the case. […]

The consequences of Defence Counsel’s failure to object at the trial do not fall upon counsel, but upon the client, in this case a 14½ year old boy on trial for his life.

I appreciate that after nearly eight years many difficulties will be met with if a new trial is held both on the part of the Crown and on the part of the accused, but these difficulties are relatively insignificant when compared to Truscott’s fundamental right to be tried according to law.


[1] See THE TRIUMPH OF ISABEL LEBOURDAIS | Maclean’s | November 19 1966 (macleans.ca); also THE TRIAL OF ISABEL LEBOURDAIS | Maclean’s | June 4 1966 (macleans.ca) See also Zealots at error | Maclean’s | FEBRUARY 22,1993 (macleans.ca); Marlene film (IMDB); and “Until You Are Dead”: Steven Truscott’s Long Ride into History: Sher, Julian: 9780676973815: Books – Amazon.ca

[2] “At some point, LeBourdais considered writing a magazine article, “but it just became too big,” her son says. “It became a book” – a book every publisher in Canada turned down on the advice of their lawyers, who were afraid it would be perceived as an attack on the justice system and lead to being found in contempt of court.” – The Star, emphasis added. See also Real Justice: Fourteen and Sentenced to Death: The story of Steven Truscott, 2012, Bill Swan.

[3] See Kaufman Report, 2004, Executive Summary

[4]The effect of the additional evidence which was heard by this Court, considered in its entirety, strengthens the view that the verdict of the jury ought not to be disturbed.” (emphasis added – also, nicely contradicted by the dissent)

[5] Oh, I see, the Chief Justice had begun his descent into alcoholism, at the time. That explains it (for 1 out of 8, anyway)!

[6] As I’ve suggested it continues to be. On a related note, I’m also enjoying this podcast (Not on the Record), and other similar material.

[7] So much for his confident trial certainty about a 30-minute window of time for the death to have occurred: “All findings are compatible with death within 2 hours of Lynne’s last meal. They are not incompatible with death at a later time (up to 12 hours or even longer)” – emphasis added, paras. 229-230 of 2007 Reference. So he may have been off by as many as 10 hours? Holy ****. Nothing to see here.

[8] See disturbing cases such as R. v. Prokofiew, 2012 SCC 49, where a 5-4 majority somehow found that commenting on accused’s failure to testify is not reversible error. Conversely, see People v. Hughes (2002) :: :: Supreme Court of California Decisions :: California Case Law :: California Law :: US Law :: Justia, emphasis added:

Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. (People v. Murtishaw (1981) 29 Cal. 3d 733, 757-758 (Murtishaw); see also People v. Bradford (1997) 15 Cal. 4th 1229[27 Cal. 4th 372] 1339 (Bradford) [“a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand“].)