Sunday 17 January 2010

Sometimes compensating the ‘innocent’ isn’t justified.

Forty years ago, (1969) I was contacted by phone by a member of the Ontario Legislature. The member who phoned me was Dr. Morton Shulman (now deceased) He was a member of the New Democrat Party and he had been approached by a man who had been released from prison six months previously after serving two years in a penitentiary. The reason for his release was that the Supreme Court of Canada had ruled that he had not participated in the robbery he had previously been convicted of.

The reason why he went to Dr. Shulman was ‘Morty’ was always helping those in need and the man figured that if anyone could help him, it would be Morty. The man couldn’t get a job because during the six months after his release, whenever he applied for a job and had to explain where he had been for the previous two years, he was always turned down. Even Morty was unsuccessful and the hospital where had worked as a male nurse before his arrest even refused to hire him.

Morty asked me if I would interview him and try to assist him in getting work. At that time, I was the executive director of a non-profit organization that looked after problems ex-cons were facing after they were released.

To make a long story short, I got him a job in three days because after I read the decision of the Supreme Court and passed it onto the hospital he had previously worked for, they read it and conclude as the court had that he really was an innocent man. They immediately rehired him.

Morty called me to thank me and then asked me if I would be willing to prepare a report dealing with the need for compensating innocent persons sent to prison. He said that he would have his political party present it to the other members of the legislature in hopes that the government would come up with some legislation compensating innocent people sent to prison.

As most of us know, private bills are rarely ever passed in legislatures and/or parliaments unless the governments in office are really serious about the subject matter of the bills. For this reason, I told Morty that I would prepare such a report providing the other political parties, including the government in office party (the Conservatives at that time) would participate in the preparation of the report. I said I would try and form a committee of legislators, criminal court judges, law professors, and criminal lawyers to do justice to such a report. He agreed with me. I met with the party whips of the three political parties in the Ontario Legislature and they agreed to appoint one of their party’s members to sit on the committee. Morty sat on the committee on behalf of the NDP.

It took me several months to find the right people to serve on such a committee and at the same time, be willing to serve under my leadership. At that time, I was 36 years of age and at that time, I only had a grade nine education but I was a good organizer and could write well and conduct research as well as any of my contemporaries. Four of the real luminaries on that committee were, Arthur Maloney who had previously served in the Canadian parliament and was a well respected criminal lawyer. He later became Canada’s first Ombudsman. The second one was Peter Cory. He was a criminal lawyer who later served as a member of the Supreme Court of Canada. The third one was Roy McMurtry. He was an esteemed criminal lawyer who later became the Attorney and Solicitor General of Ontario and later the Chief Justice of Ontario. The fourth one was John Weisdorf, the head of Ontario Legal Aid at that time and later, an assistant crown attorney and at the time of this writing, a criminal lawyer. The other members were no slouches either, one being a law professor, another being a judge who later became a judge in the federal court in Ottawa, and another being the chairman of the Law Reform Commission of Ontario.

One of the problems facing our committee however was that no one in Canada who is acquitted is actually found innocent of the crimes they have been tried for. They are simply found not guilty. In other words, they could be guilty as hell but found not guilty simply because the prosecution hasn’t convinced the jury or the judge of the real guilt of the defendant. That could be because the witnesses are dead, the testimony of the witnesses are suspect, or the evidence is so highly circumstantial, that it would be risky to convict on such slim evidence.

Then one day four of us, Arthur Maloney, Peter Cory, a criminal court judge on our committee and I were meeting in Arthur’s home discussing this problem. The judge gave us the answer to that perplexing problem. He said that when he had to decided on the guilt or innocence of a person, he asked himself four questions. They were; (1) was a crime actually committed? (2) was the defendant actually breaking the law when he did what he was accused of doing? (3) was the defendant defending himself? (4) was the defendant the actual person who committed the crime? The judge said that if the defendant before him fit into one of those possibilities, then he was truly innocent.

Another problem we dealt with was; should there be a government body that would hear the requests for compensation and make the decisions as to whether or not the awards are to be given and if so, how much the awards should be in each case? We finally concluded that the trial judge was in the best position to determine if the applicant was really guilty since he or she heard all of the evidence, even some which the jury didn’t hear. We also concluded that the government’s Compensation for Victims Commission could decide as to how much the award should be if the judge conducting the trial was satisfied that applicant was innocent.

We were aware that there was a problem that the applicant for compensation would face. If he applied to the appeal court that reheard his case for a ‘Certificate of Innocence’ so that he would be eligible to apply to the ‘Commission’ for compensation and was refused, then people would forever say that he really wasn’t an innocent man.

The following year I was fortunate enough to have a former Solicitor General of Ontario act as an advisor to the Committee. At that time, he was the director of the Compensation for Victims Commission. After I prepared my report and showed it to him, he said that he would be willing to draft up a legislative bill that could be presented to the legislature. He prepared the bill and I personally delivered it to the then Attorney General of Ontario.

Meanwhile I was invited to be a major speaker at a national crime conference held in Ottawa and that is when my Report was published.

The Attorney General at that time refused to give our committee’s proposition any serious consideration so I had a meeting with Pat Hart, who was the chairman of the newly formed Law Reform Commission of Canada. He read my report and later told me that he was so impressed with the Report that he was going to make the issue of compensating innocent people the first thing his Commission was going to deal with.

To make a long story short, years went by while innocent people continued to suffer imprisonment and then when a nurse in Toronto underwent a long trial for the murder of six babies in the Toronto Sick Children’s Hospital, she was found not guilty by one of the judges that sat on my committee. The nurse sued the government and Roy McMurtry (who was then the Attorney General of Ontario) The Ontario government paid a very large sum to her for what she had been put through.

Soon after that, innocent people were suing the governments in the various provinces for wrongful imprisonment when it was established that they really were innocent. One innocent man who spent 24 years in prison was awarded $10 million dollars.
In one case, Peter Cory was asked to make the determination as to how much the innocent man in one of the provinces was to be awarded.

I waited for many years for this to all come about. Fortunately, Morton Shulman, Arthur Maloney, the two trial judges and one of the law professors who all served on my committee saw the day when innocent persons would be compensated, before these great men passed on.

Several years ago, I met Roy McMurtry and his family when they were exiting a large book store in downtown Toeronto I was about to enter. Roy introduced me to his family and told them of my role in the Committee for the Innocent. He said that my voice was the voice heard in the wilderness. He got that right. I thought no one was hearing my cry for justice for the innocent but eventually, my cry was heard.

Jurors are given instructions by the judge on what the law is, and it is for the jurors to apply the law to the facts they have heard. In the US, judges are not allowed to comment or summarize the facts however in Canada, judges may still provide summations of the facts. If there is no jury, then the judge explains as to how he reached his or her verdict.

The judges don’t award ‘Certificates of Innocence’ as our committee had proposed but how they instruct the jury (if there is a jury trial) just before the jury goes into the jury room to decide their verdict is studied and if no jury is involved, then the judge’s decision is also carefully studied by the government or a judge retained for the purpose of deciding as to where or not the applicant is entitled to compensation.

If the applicant is considered as having been innocent, then the only other matter to be dealt with is how much the award should be. Canada, to its credit is very generous with its awards they give to innocent people.

Recently, the government of Ontario made two interesting decisions with respect to two cases in which two innocent persons were applying for compensation.

The first applicant was a man named Robert Baltovich. In 1990 Baltovich graduated with a degree in psychology and history from the University of Toronto at Scarborough. (part of Toronto) Here he also met and developed a relationship with Elizabeth Bain, a fellow student. Later, Bain disappeared on June 19, 1990, telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat. Her body was never found.

On November 19, 1990, Baltovich was arrested and charged with first-degree murder. His case continued in the courts for many months, during which he consistently maintained his innocence. His lawyers suggested that the so-called ‘Scarborough Rapist’, the name by which the infamous Canadian serial killer Paul Bernardo was then known, might be responsible for the murder. On March 31, 1992, he was convicted of second-degree murder. Nine years later, his lawyers appealed and on March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal.

In September 2004 his appeal was finally processed and his case gained national attention again when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They allege that circumstantial evidence suggests links to Bernardo, and that this evidence could not have been available during Baltovich's original trial as the identity of the Scarborough rapist was then unknown.

On December 2, 2004, the Court of Appeal for Ontario set aside the conviction, delivering what news reports called ‘a scathing attack’ on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and he remained free on bail in the meantime. During that time, Baltovich worked as a librarian for the Government of Ontario.

On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law. The Crown case against Baltovich was considerably weaker at the re-trial, in part because evidence obtained from witnesses by hypnosis was no longer legally admissible, as a result of concerns about its accuracy. With no Crown case to present to the judge and jury, the judge directed the jury to make a finding of not guilty on April 22, 2008.

Innocent people go to prison every day. Guilty people walk out of court free and clear every day. The difference often can be attributed to the quality of defence counsel an accused can afford or otherwise secure. That's an unfortunate reality of the justice system. Robert Baltovich had excellent appeal lawyers. He also was the beneficiary of a dreadfully slanted charge to the jury by the judge at his first trial – in 1992, when he was convicted – which provided ample grounds for appeal, and was granted on specific grounds but not, as has commonly and casually been asserted, because his legal team pointed to Paul Bernardo as a legitimate suspect in the murder of Baltovich's girlfriend, Elizabeth Bain. In fact, the appeal judges had pointedly declined to consider the merits of Bernardo-as-killer scenario when they overturned the verdict and ordered a new trial, basing their decision on errors in law as committed by the trial judge.

The proposed retrial – 18 years after Bain disappeared collapsed when it had barely begun. Evidentiary rules had changed since 1992, key witnesses who'd testified the first time around were excluded, laws pertaining to after-the-fact conduct had shifted, memory of events had deteriorated among those expected to testify. Another development, which is too complicated to be explained here, had essentially eliminated Bain's father as a witness at the new trial. All these factors woven together made a new trial pointless. As a result, on April 22, 2008, Crown Attorney Phil Kotanen called no evidence, instead inviting the jury to bring back a not-guilty verdict, and that they obligingly did.

Baltovich made the request for compensation to the Attorney-General in September 2008.

A spokesperson from the Ministry of the Attorney General of Ontario announced in January 2010 that it will not provide compensation to Robert Baltovich for the nearly nine years he spent in prison. The spokesperson announced, "After careful consideration of the factors relating to this matter, the Attorney-General has concluded that the payment of financial compensation is not appropriate in this case."

As I see it, the government had no other choice but to deny compensation to Baltovich. This is not to say that he murdered Bain. He may very well have been innocent of that crime but since that is only supposition at best, it is simply not enough to justify an award of compensation for the almost nine years he spent in prison.

Since innocence is the basic and paramount criteria for receiving compensation, I can only presume that the government felt that there was no real evidence established in any form that Baltovich was really innocent.

It is conceivable that Paul Bernardo really did rape and murder Elizabeth Bain but that is only supposition and nothing more. If the original jury found him not guilty based on reasonable doubt that possibly Bernardo committed the murder, that really wouldn’t establish that Baltovich was innocent. Reasonable doubt is a benefit given to defendants in criminal trials as a right but it should not to be considered proof of innocence.

It a government is going to pay out millions of taxpayer’s dollars to a man or woman who is acquitted of a murder after having served time in prison, the government wants to be satisfied that the defendant really is innocent. In awards that have been given to wrongfully convicted defendants, there really was evidence that they were innocent. DNA has in many cases, proved their innocence. Supposition is not really evidence of innocence.

In Canada, it is against the law for a juror to publicly state how he or she arrived at a decision so we will never know how they arrive at their decisions. In the US, they are free to publicly state how they arrived at their decisions.

If Baltovich proceeds with his claim via a civil lawsuit, he will get the opportunity to lay out whatever grievances he has against the cops who investigated the murder and the prosecutors who brought the case to court. But surely ‘suffering'’ – for Baltovich, those years spent in jail and whatever odour of guilt may still hang over his head in the court of public opinion – must also be assessed alongside actual, quantifiable events such as; what a jury believed to be the correct verdict on the evidence presented to them. If the matter goes to civil court, the case will be an extremely interesting one to follow.

The second case I am going to present to you is equally an interesting one.

The appellant was also a Canadian. He was wrongfully convicted of a 1987 sexual assault. At the original trial in 1989, the victim's mother identified Hanemaayer as the assailant based on a brief look after the assault. Hanemaayer pleaded guilty on the advice of his lawyer, to avoid a long sentence. In 2006, however, convicted serial rapist Paul Bernardo confessed to the assault, throwing Hanemaayer's conviction into question (he had long since served his sentence). Police interviewed Hanemaayer again about the assault without telling him specifically about Bernardo's confession; however, late in 2007 the Association in Defence of the Wrongly Convicted learned of the confession and informed Hanemaayer, then took up his case early in 2008. On June 25, 2008, the Court of Appeal for Ontario formally overturned Hanemaayer's conviction and exonerated him of the crime.

The office of the Attorney General announced in January 2010 that no compensation would be given to Anthony Hanemaayer. In his case, there was no suggestion of malice or negligence, no allegation of a deliberate miscarriage of justice and, thus far, no corroborated accusation of a compromised police investigation.

Another factor that the Attorney General took into consideration (one that was an important one) was the fact that Hanemaayer pleaded guilty of the crime even though he knew that he wasn’t guilty of it.

If you go to my archives and specifically back to my essay, Dangers of False Confessions which was published in my blog on March 25, 2009, you will have a better understanding as to why innocent people confess to crimes they didn’t commit.

Hanemaayer in essence lied to the judge when he stated that he committed the crime. It’s the policy of the courts that when a defendant pleads guilty of a crime, the judge will ask the defendant to give details of the crime. Hanemaayer lied again when he gave false details of a crime he didn’t commit.

I can appreciate why a defendant facing a long sentence if he is found guilty, will choose a way in which his sentence will be reduced by pleading guilty when in reality he is innocent. In the United States where the death penalty is exercised in some of the states, the prosecutor (in order to bring closure to the families of murdered victims) will offer to settle for a life sentence being awarded to the defendant if he or she pleads guilty of the crime and tells the court and the police where the body is or where the bodies are. And in some instances, innocent defendants have pleaded guilty of murders they didn’t commit because they knew that if a jury found them guilty, they will be sentenced to death. Rather than take the risk of being executed, they settled for a life sentence and pleaded guilty for the murder or murders they didn’t commit.

If Hanemaayer had been facing the prospect of being put to death, then I would truly understand his motives and sympathize with him as to why he would have pleaded guilty to a crime he didn’t commit. But his life was not at risk. He chose instead to plead guilty so that he would get a reduced sentence. For this reason, I don’t support his argument that he should be compensated for being wrongfully convicted of a crime he didn’t commit considering the fact that he told the court he really did commit the crime and falsely described the crime when testifying in court just before his sentence was given to him by the judge.

There is only one case I know of where a man who said he was guilty deserved compensation but didn’t get it. When I was doing my research for my report of the Compensation for the Innocent Committee, I learned that in one of the southern states in the U.S., a man was seized by a crowd of vigilantes who then placed a noose around his neck. They told him that if he confessed to the murder, they would spare him and turn him over to the police. He told them he committed the murder and the vigilantes removed the noose from his neck and then they turned him over to the police. At his trial, his ‘confession’ to the vigilantes was submitted to the jury as the only real evidence they had against him. He was convicted and sentenced to life in prison. Years later, the authorities learned that he really was innocent and he was subsequently released from prison. When he applied for compensation, he was turned down because of his so-called ‘confession’.

I’m sticking to my guns. (Oh oh. I better not say something like that when I am in an airport or on board a plane) Both of the men I have just written about ((Baltovich and Hanemaayer) deserve my sympathy but not compensation for their imprisonment. There has to be a line drawn in the sand as to just how far society must go to right a wrong and in these two men’s cases I have just described, the line was rightly obliterated.

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