Should Anthony Hanemaayer be compensated?

Anthony Hanemaayer, now 40, convicted of assaulting a 15-year-old girl in a 1987 with a knife in her Toronto bedroom was exonerated on June 25, 2008 by the Ontario Court of Appeal after new information revealed that imprisoned killer and serial rapist Paul Bernardo had confessed to the crime. Hanemaayer had served time in jail for that crime.

At the time of his trial in 1989, Hanemaayer pleaded guilty and was given a jail sentence of two years less a day. Speaking to CBC News, he said he accepted a plea bargain on the advice of his then lawyer, who had previously warned him that he could receive a longer prison sentence if he fought his case at trial. After serving his sentence, Hanemaayer said he didn’t hear about the case until Toronto police questioned him about it again in 2006. At that time, the police were aware that Bernardo had confessed to the assault on the 15-year-old, but they didn’t mention it to Hanemaayer.

Appearing on June 25th, in the Appeal Court, he formally withdrew his guilty plea from 1989 so that the court could exonerate him.

Apparently the Crown's case against him in his 1989 trial was founded on an erroneous eyewitness identification of him by the mother of the victim during a quick 60-second encounter early in the morning at the time of the attack.

Unreliability of eyewitness identifications is a common problem everywhere and a great many persons sentenced to prison have been exonerated when it was established that the wrong persons had been imprisoned. Prosecutors and defence lawyers should be aware of the dangers inherent in building prosecutions on such evidence.

Later at a news conference, Hanemaayer's lawyer said he would be seeking compensation but gave no specific details of what that request would entail.

The basis of this blog is the issue of compensating Hanemaayer for his incarceration for a crime he didn’t commit.

From 1969 through 1970, I headed an ad hock task force of legislators, criminal judges, criminal defence lawyers and law professors that was to report its findings to the attorney general of Ontario with respect to the question of whether or not innocent persons who were incarcerated for crimes they didn’t commit; be compensated. We recommended that such persons be compensated. It finally came about years later across Canada.

As to how much time Hanemaayer served, I have no idea but normally he would only have served two thirds of his sentence in prison. That would amount to 16 months. Nick Norris was wrongfully convicted of raping a neighbour and his conviction was based on false identification. He spent nine months in jail and was awarded a little over half a million dollars as compensation. That could mean that Hanemaayer might be awarded something in the area of around eight hundred thousand dollars.

One of the problems my task force was faced with was what to do about innocent persons who confessed to the crimes they hadn’t committed.

DNA evidence unavailable at the time has now proven conclusively that five teenage boys sent to prison 18 years ago for raping and almost killing a female jogger in New York's Central Park were not guilty of that crime. What's most shocking is that the boys' convictions were not the result of perjured testimony by racist cops, or manufactured evidence, or jurors addled by some prosecutor's demagogic brilliance. Their convictions were based on their false confessions.

On May 7, 2000, Brenton Butler was walking to a Blockbuster video store to fill out a job application when he was picked up by police as a murder suspect. The slight 15-year-old from Jacksonville, Florida, had never been in trouble before, and he told police that he had nothing to do with the murder. Still, for almost 12 hours, detectives kept Butler locked in an interrogation room with carpeted walls, refused to let him see his parents or speak to a lawyer, and just gave him just a cup of water. He finally confessed to the murder he hadn't committed.

The members of my task force had no qualms about compensation awards being given to innocent persons who had been browbeaten into confessing to crimes they hadn’t committed, especially when they didn’t have a lawyer in attendance while they were being questioned by the police.

The dangers of police questioning suspects without lawyers present are obvious and a Canadian case in point is one which I investigated in 1976. The man was arrested many years prior to 1976 and was beaten by the police until he confessed to murdering a five-year-old girl. He was hanged solely on his confession. Later, the police admitted to the girl’s aunt that the wrong man was hanged.

But what do we do with respect to defendants who confess after they have talked with their lawyers who told them that if they don’t plead guilty, they could get a much higher sentence?

Plea bargaining is justice for sale, offering lessor sentences to defendants for their crimes depending on whether a defendant exercises his or her right for trial? It is a normal byproduct of criminal litigation where even without caseload pressures, most charges end in pleas.

If plea bargaining wasn’t the usual practice in our courts, the courts would be bogged down and defendants could wait for years for their trials, which in many cases, would result in them bringing in motions to stay the proceedings because they were denied their Charter rights to speedy trials.

Guilty defendants who plead guilty are given consideration by the courts when it comes to sentencing so many opt for it.

What concerns me in the Hanemaayer case was that he denied having anything whatsoever to do with the sexual assault on the 15-year-old and yet the lawyer representing him in 1989 was negligent in my opinion in not taking his client seriously. He had suggested to his client that it would be in his best interests to take a plea and plead guilty so that he would be sentenced to no more than two-years less a day. If his lawyer had anything on the ball (and I don’t think he did in this case) he would have realized that the only evidence the crown had was an eyewitness account of the mother of the victim who only had a minute to see her daughter's attacker.

Such evidence is shaky at best. Presumably the judge who presided over Hanemaayer's trial was experienced and well aware of the dangers of accepting eyewitness testimony. He may very well have given Hanemaayer the benefit of the doubt and set him free. Instead the lawyer took the easy way out and let his client plead his way into prison for a crime he hadn't committed.

Now, I ask my readers, should this unfortunate man be compensated for being falsely accused and imprisoned as a result of his false confession?

As much as I feel sorry for him, I do not feel he should be compensated. He was not a teenager who had been beaten into a confession by the police. He knew he was innocent and yet he buckled under the wrong advice given to him by a lawyer who chose not to fight for his client.

When I represented clients in criminal courts, I always asked them to tell me the truth so that I could advise them as to whether or not we should fight or accept a plea bargain. If they told me they were innocent, I never plea bargained them into prison. Some were convicted anyhow but they would have a better chance at appealing their conviction by maintaining their innocent right from the start.

Not that long ago, an American senator confessed to a minor crime he later said he didn’t commit. The court refused to let him withdraw his confession. If Bernardo hadn’t confessed to committing the crime Hanemaayer had confessed to, he would have a slim chance or none at all of successfullly appealing his conviction unless there was something very compelling that would have proved beyond a doubt that he was innocent.

Without trying to be insulting to this unfortunate man, I have to say that he was very stupid to follow the advice of his lawyer when he knew that he was really innocent. I don’t think society should be dipping into the public purse to award a man whose own stupidity got him into the mess he was in. He probably will however be compensated and if he is, I will be happy for him.

I sincerely hope this message is read by people who might otherwise knuckle under the advice of lawyers who would rather have them plea bargain their way into prison when in fact they are really innocent of the crimes they are accused of committing.

With what has been said and done, I do wish Hanemaayer all the best.