Wednesday, 13 August 2014

Police stings used to get confessions

I don’t see anything wrong for the police to use stings to get confessions from suspects as long as they don’t cross the line. Unfortunately, there have been instances when the police not only crossed the line, they actually trampled on it.

Take the instance when the police in San Francisco used a really obnoxious sting to get Barbara Graham to confess to participating in the strangling of an elderly lady while she and her two male friends were robbing her. According to the movie of her life, the police sent in an undercover police officer posing as a lawyer. She told him everything. Her confession resulted in her and the others being executed in the gas chamber at the San Quentin penitentiary. Actually, in real life, that sting didn’t happen that way as the movie was a fictional account of her life.

There was a sting used to get her to confess however. It was used in a different manner. Apparently she offered another inmate $25,000 to hire a friend in order to provide an alibi. The inmate however, was working in league with an undercover policeman in order to reduce her own vehicular manslaughter sentence. The officer posed as the inmate’s ‘boyfriend’ and told Graham that he was willing to say that he was with her the night of the murder, if she admitted to him that she was actually at the scene of the crime. The officer recorded the conversation. This attempt to suborn perjury, as well as her confession that she was at the scene, destroyed Graham's credibility in court. She and her two companions were subsequently executed in the gas chamber on January 3, 1955. The inmate who helped set up the sting was immediately released as time already served. There was absolutely nothing improper with that sting especially since Graham instigated it herself.
Many years ago, the Toronto Police had captured two criminals who were partners in a crime but neither would confess. The police forged a confession of one of the men and showed it to the other man who then confessed to the crime. At their trial, the judge was incensed that such a forgery was used in the sting since forgery is against the law in Canada and not even the police can use a forged document to obtain a confession. The men were acquitted of the crime since there was no other evidence available to the prosecution.

This does not mean that the police in Canada cannot use a sting to obtain a confession from a suspect. That was decided in a recent Supreme Court of Canada decision with respect to a sting that was used by the RCMP in Newfoundland in which the sting was referred to as “Mr. Big”—a typical sting that has been used by the police in Canada 350 times since the early 1990s. 
The sting was used to get a so-called confession out of a man who was suspected of purposely drowning his two three-year-old twin daughters in a lake in Newfoundland on August 4, 2002.

The police immediately suspected that Nelson Hart was responsible for his daughter’s deaths. They didn’t believe his explanation that he went into an epileptic fit when he saw them struggling in the water. Unfortunately they lacked the evidence needed to charge him with the crime of first degree murder. They decided to use a sting to elicit a confession from him.  The sting was the Mr. Big sting that has been commonly used in the past by various police forces in Canada and the United States.

Hart was unemployed and socially isolated. He rarely left home and when he did, he was in the company of his wife. He also only had a grade five education  so he was vulnerable to be unknowingly conned by the police to become part of a criminal enterprise with the promise that being part of that enterprise would make him a lot of money.

After he was recruited to the organization, he worked with the undercover officers and was quickly befriended by them which made him happy to have friends who liked him.

Over the next four months, he participated in 63 “scenarios” with the undercover officers and was paid more than $15,000 for the work that he did for the organization.  As part of that work, he was also sent on several trips across Canada such as Halifax, Montreal, Toronto and Vancouver.  He often stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the fictitious organization’s expense.  Over time, the undercover officers became his best friends and he came to view them as his brothers.  According to one of the undercover officers, during this time frame, Hart made a bald statement in which he confessed to having purposely drowned his daughters.
The second so-called confession came about as a direct result of the introduction of Mr. Big. His meeting with Mr. Bigt was akin to a job interview between Hart and Mr. Big who was the man purportedly at the helm of the criminal organization.  During their meeting, Mr. Big interrogated Hart about the death of his daughters, seeking a confession from him.  After initially denying responsibility, Hart confessed to drowning his daughters.  Two days later, Hart went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water.  He was arrested shortly thereafter. This sting cost the taxpayers $4134,000.
At trial, Hart’s three confessions were admitted into evidence. The trial judge denied Hart’s request for permission to testify with the public excluded from the courtroom.  A majority of the Court of Appeal allowed Hart’s appeal and ordered a new trial.  That was because the Court of Appeal unanimously held that the trial judge erred in refusing to allow Hart to testify outside the presence of the public.  A majority of the court also concluded that the Mr. Big operation had breached Hart’s right to silence under section 7 of the Canadian Charter of Rights and Freedoms.  The majority excluded two of Hart’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning.  However, the majority concluded that Hart’s bald earlier confession was admissible and ordered a new trial. The Crown (prosecution) appealed to the Supreme Court of Canada.
The justices in that court concluded that the Mr. Big technique came at a price.  They agreed that suspects who confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats and this raises the spectre of unreliable confessions.  Unreliable confessions provide compelling evidence of guilt and present a clear and straightforward path to conviction.  In other contexts, they have been responsible for wrongful convictions; a fact that the justices couldn’t ignore.
The court also recognized that Mr. Big confessions were also invariably accompanied by evidence that showed Hart willingly participated in “simulated crime” and was eager to join a criminal organization.  The court said that this kind of evidence sullies the accused’s character and, in doing so, carries with it the risk of unfair prejudice. In my opinion, it is almost tantamount to entrapment by the police.
Experience in Canada and elsewhere teaches us that wrongful convictions are often traceable to evidence that is either unreliable or at least, prejudicial.  When the two combine, they make for a potent mix and the risk of a wrongful conviction increases accordingly.  Wrongful convictions are a blight on our justice system.  Our courts must take reasonable steps to prevent them before they occur. 
Mr. Big operations also run the risk of becoming abusive.  Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess.  They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence.  There is a risk these operations may become coercive.  Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth.
Under existing law, Mr. Big confessions are routinely admitted under the party admissions exception to the hearsay rule.  Attempts to extend existing legal protections to Mr. Big operations have failed.  The Supreme  Court has held that Mr. Big operations do not engage the right to silence because the accused is not detained by the police at the time he or she confesses.  And the confessions rule which requires the Crown to prove an accused’s statement to a person in authority is “voluntary” is inoperative because the accused does not know that Mr. Big is a police officer when he confesses. The law as it stands today provides insufficient protection to accused persons who confess during Mr. Big operations.
The court said that a two-pronged response is needed to address the concerns with reliability, prejudice and police misconduct raised by these operations. The first prong requires recognizing a new common law rule of evidence.  Under this rule, where the state recruits an accused into a fictitious criminal organization and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible.  This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect.
Let me give you an example of the probative value of the confession outweighing its prejudicial effect.
 Probative evidence can be submitted as evidence in court by the prosecutor for the purpose of proving something that is important in a trial. Probative value of proposed evidence must be weighed against any form of prejudice in the minds of jurors towards a criminal defendant.  If that kind of evidence would unfairly mislead the jurors, then it can’t be used.
The probative value of a Mr. Big confession is a function of its reliability.  In assessing the reliability of a Mr. Big confession, the courts must first look to the circumstances in which the statement was made.  These circumstance include—but are not strictly limited to the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication and mental health.  The question for the trial judge is whether and to what extent the reliability of the confession has been called into doubt by the circumstances in which it was made.
After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability.  Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that have not been made public, or whether it accurately describes mundane details of the crime the accused would likely not know had he or she not committed it.  Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability.  The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence.
Weighing the prejudicial effect of a Mr. Big confession is far more straightforward and a familiar exercise.  Trial judges must be aware that admitting Mr. Big confessions creates a risk of moral and reasoning prejudice.  With respect to moral prejudice, the jury learns that the accused wanted to join a criminal organization and committed a host of “simulated crimes” that he believed were real.  Moral prejudice may increase with operations that involve the accused in simulated crimes of violence, or that demonstrate the accused has a past history of violence. 
As for reasoning prejudice which is defined as the risk that the jury’s focus will be distracted away from the charges before the court, it too can pose a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred.  However, the risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative, or by the judge providing limiting instructions to the jury. 
In the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the prosecutor has met its burden.  Because trial judges, after assessing the evidence before them, are in the best position to conduct this exercise, their decision to admit or exclude a Mr. Big confession will be afforded considerable regard on appeal.
 Justice Moldaver of the Supreme Court said that this new common law rule of evidence goes a long way toward addressing the concerns with reliability, prejudice, and police misconduct that are raised by Mr. Big operations.  He said that it squarely tackles the problems with reliability and prejudice.  In addition, it takes account of police misconduct both by placing the admissibility onus on the prosecutor and by factoring the conduct of the police into the assessment of a Mr. Big confession’s probative value. 
However, the common law rule of evidence he proposed does not provide a complete response to the problems raised by Mr. Big operations.  On its own, it might suggest that abusive police conduct will be forgiven so long as a demonstrably reliable confession is ultimately secured.
The second prong of the response fills this gap by relying on the doctrine of abuse of process.  The doctrine of abuse of process is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials.  
Trial judges must be aware that Mr. Big operations can become abusive.  It is of course impossible to set out a precise formula for determining when a Mr. Big operation will reach that threshold.  But there is one guideline that can be suggested. 
In conducting an operation, the police cannot be permitted to overcome the will of the accused and coerce a confession.  This would almost certainly amount to an abuse of process.  While violence and threats of violence are two forms of unacceptable coercion, operations can become abusive in other ways.  Operations that prey on an accused’s vulnerabilities, such as mental health problems, substance addictions, or youthfulness, can also become unacceptable.
The trial judge did not apply this two pronged framework in determining the admissibility of Hart’s confessions.  Nor did the parties address it in the courts below or before this Court.  Nonetheless, this Court is in a position to decide whether the respondent’s confessions were properly admitted.  Although a new rule has emerged, the issues have not changed: the reliability of H’s confessions, their potential for prejudice, and the conduct of the police in carrying out this Mr. Big operation have been in issue from the outset.  The parties have addressed these issues, and there is a substantial record before us.  These proceedings have also been difficult and protracted.  More than a decade has passed since H’s daughters died.  Ordering a new trial and leaving the admissibility of H’s confessions to be determined by a new trial judge would be tantamount to sending this case back to square one.  That would not be in the interests of justice.
Justice Moldaver said, “The trial judge did not apply this two pronged framework in determining the admissibility of Hart’s confessions.  Nor did the parties address it in the courts below or before this Court.  Nonetheless, this Court is in a position to decide whether the respondent’s confessions were properly admitted.  Although a new rule has emerged, the issues have not changed: the reliability of Hart’s confessions, their potential for prejudice, and the conduct of the police in carrying out this Mr. Big operation have been in issue from the outset.  The parties have addressed these issues, and there is a substantial record before us.  These proceedings have also been difficult and protracted.  More than a decade has passed since Hart’s daughters died.  Ordering a new trial and leaving the admissibility of Hart’s confessions to be determined by a new trial judge would be tantamount to sending this case back to square one.  That would not be in the interests of justice.” unquote
Applying the new common law rule to the three confessions attributed to Hart, it is apparent that their probative value does not outweigh their prejudicial effect.  At the time the operation (sting) began, Hart was unemployed and socially isolated.  The operation had a transformative effect on his life, lifting him out of poverty and providing him with illusory friendships.  These financial and social inducements provided Hart with an overwhelming incentive to confess either truthfully or falsely. He may have made a false confession as a sign of bravado in order to impress Mr. Big.
 The three confessions themselves don’t actually contain any markers of reliability that are capable of restoring faith in their reliability.  The confessions contain internal contradictions, and there is no confirmatory evidence capable of verifying any of the details contained within the confessions.  When the circumstances in which Hart’s confessions were made are considered alongside their internal inconsistencies and the lack of any confirmatory evidence, their reliability and his guilt is left in serious doubt. 
On the other hand, these confessions like all Mr. Big confessions carried with them an obvious potential for prejudice.  The jury heard extensive evidence that for four months Hart had devoted himself to trying to join a criminal organization and that he repeatedly participated in what he thought were criminal acts.  It is easy to see how the jury could come to view Hart with a certain degree of disdain.  Here was a man who bragged about killing his three-year-old daughters to gain the approval of criminals.  The potential for prejudice in these circumstances was extremely significant.    
The Justice said, “On balance, the Crown (prosecutor) has not met its onus.  The probative value of Hart’s confessions does not outweigh their prejudicial effect.  Put simply, these confessions are not worth the risk they pose.  It would be unsafe to rest a conviction on this evidence.  It is accordingly unnecessary to decide whether the police conduct amounted to an abuse of process.”
Having excluded Hart’s confessions from evidence, it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict Hart of murder.  However, the final decision on how to proceed rests with the Crown. 
Justice Cromwell said in his response to the above, “There is agreement with the majority’s analysis of the legal framework that ought to apply to statements obtained from accused persons as a result of Mr. Big operations.  However, the admissibility of Hart’s statements to the undercover officers ought to be determined at a new trial where the judge and the parties would have the benefit of the new framework set out in the majority’s reasons.” unquote    
Justice Karakatsanis said, “Confessions to state agents raise particular dangers for the criminal justice system.  The very structure of Mr. Big operations creates circumstances that (1) compromise the suspects’ autonomy, (2) undermine the reliability of confessions, and (3) raise concerns about abusive state conduct.  Yet, Mr. Big confessions are not caught by the traditional rules governing confessions to the state, such as the confessions rule or the right to silence.  The common law rule proposed by the majority fails to consistently take into account broader concerns that arise when state agents generate a confession at a cost to human dignity, personal autonomy and the administration of justice.  The principle against self-incrimination, under s. 7 of the Charter, provides comprehensive and flexible protection in such circumstances.” unquote
The principle against self-incrimination provides the appropriate analytical framework for several reasons.  First, Mr. Big operations directly engage the individual privacy, autonomy and dignity interests that the principle is meant to protect.  Second, this approach draws on existing jurisprudence concerning the principle against self-incrimination, making it unnecessary to create a new rule.  Third, the principle provides an opportunity to weigh intertwined concerns about reliability, autonomy and state conduct together in a nuanced way.  Finally, it addresses suspects’ rights both during the operation and also at trial.
This court in R. v. White said, “There are four factors for determining whether the principle against self-incrimination has been violated by the production or use of a suspect’s statements: adversarial relationship; coercion; reliability; and abuse of state power.  While these factors should be considered together, each emphasizes a particular legal interest.”  unquote
The onus will be on the accused to establish a prima facie (at first sight) that there exists a breach of the principle against self-incrimination.  To do so, the accused must show that concerns about autonomy, reliability, and police conduct exist, as they will in nearly every Mr. Big operation.  In such circumstances, the burden will shift to the Crown to establish that there is no breach whatsoever.
As concerns the first factor, the relationship between Hart and the state was adversarial.  As in any Mr. Big operation, the police deliberately set out to obtain a confession from him. As for the second factor, coercion is primarily concerned with the autonomy and dignity of the suspect and asks whether the suspect had a choice to speak to the authorities.  There will almost always be some degree of coercion in a Mr. Big operation.  The court should consider: the magnitude and duration of the operation; any explicit or implied threats used; any financial, social or emotional inducements applied; and the characteristics of the suspect, including any mental, physical, social or economic disadvantages.  This approach protects the autonomy of the suspect.
 In this particular case, the trial judge concentrated on the lack of violent coercion during the operation, but did not consider the effect of the financial and social inducements on Hart.  These inducements were significant by anyone’s view, but must be viewed as more seriously infringing Hart’s autonomy interests, given his extreme poverty and social isolation as well as his lack of education.  The deceit employed was extensive.  By preying on his vulnerabilities to such a degree, the police deprived Hart of meaningful choice about whether to give an incriminating statement to Mr. Big—the undercover officer. 
The reliability inquiry focuses on the trustworthiness of any statement obtained.  The courts must execute a gatekeeper function in assessing the risk of a false confession and corroborating evidence will usually be a prerequisite to admission.  This function is important because juries often struggle to properly assess the ultimate reliability of Mr. Big confessions.  They find it difficult to believe that someone would confess to a crime that he or she did not commit and are loath to disregard a confession even where it is known to be coerced. 
This danger is compounded by the criminal propensity evidence generated during a Mr. Big investigation.  An accused must either let the confession stand or explain that he or she made it to continue their new criminal lifestyle.  The accused is in situations like this caught between the rhetorical rock and hard place.
For this reason, confessions made to Mr. Big are particularly hazardous and judges must evaluate their threshold reliability to satisfy the important principle against self-incrimination.  Generally, an uncorroborated, unverified confession should not be considered reliable at all and should be inadmissible. The principle against self-incrimination is not solely concerned with ensuring reliable statements; even true statements which may be excluded if they were obtained through coercion that overrode the suspect’s autonomy interest. This would also apply if the suspect was offered a deal by the police since deals should only be made by the prosecutor who is in a better position to know the legal ramifications of the deal. The reason for this is that it is the role of the police to catch criminals and obtain information if possible from the accused but it is the role of the prosecutor to decide if the information gathered by the police is sufficient to bring the accused to trial or not.
As I said earlier in this piece, the Supreme Court did not ban Mr. Big operations but instead it introduced tough new standards for trial judges to consider when dealing with confessions obtained through Mr. Big operations. 
This was Canada’s first case heard by the Supreme Court that dealt with the potential wrongful convictions brought about by Mr. Big confessions that clearly recognized the risks that are inherent in Mr. Big operation’s confessions and how such procedures have the potential for police misconduct.
The police will now have to tread very carefully while they are putting their Mr. Big schemes into operation for the sole purpose of getting their suspects to confess to the crimes they have been accused of.
Just recently, the judge in an Oshawa, Ontario acquitted a man accused of murdering his former next door neighbour after the judge declared that his Mr. Big confession violated the accused’s Charter rights and constituted an abuse of process.                                                                                     
In the past, some Mr. Big confessions let the police to bodies and in other cases, confessions contained statements they knew to be false.
The Supreme Court didn’t totally exonerate Hart from the charge of murdering his daughters. The court ordered that if he is brought to trial again in a different court than his original one, his two confessions obtained by the police in their Mr. Big operation cannot be used by the prosecution against him but the one he gave prior to before the Mr. Big operation was underway can be used.
I am not going to presume whether or not he will be convicted at a new trial but I would be remiss if I didn’t mention that in my opinion, if he goes to trial, he will have a hard time explaining why he told the police that he didn’t jump into the water because he couldn't swim and then instead of using his cell phone to call for help, he left his other daughter behind  as he drove 11 kilometers to get to his home to bring his wife to the lake even though he knew that she too couldn’t swim. Unless he has an IQ of that of a gnat, he would have had to know that by the time he returned to the lake, the two daughters in the lake would be dead. What makes his  defence even worse is that while he was driving home, he drove past a hospital.  If I were the prosecutor, I would not refuse to retry him for the crimes he allegedly committed against his two young daughters. Currently, he is still in the penitentiary serving a life sentence.
In the Kyle Unger case, the police really abused their suspect’s constitutional rights. He was accused of killing a 16-year-old girl he met at a rock concert in Manitoba in 1990. Undercover police officer posing as gang members gained his confidence and they told him that he could be a member of their gang if he could prove that he committed a serious crime. He confessed to killing the 16-year-old girl. In his confession, he got certain important facts wrong. For example, the bridge he spoke of hadn’t even been built. Nevertheless, he was convicted and spent 14 years in prison. He was finally exonerated when a hair found on the body of the victim wasn’t his hair but that of another person.
He sued the RCMP and both provincial and federal officials in 2011 for $14.5 million for wrongful conviction
 Clayton Mentuc was suspected of killing a 14-year-old girl at a fair in Manitoba. The police used the Mr. Big scheme in 1996 to get him to confess to the crime. They paid him $1,800 for jobs and impressed him with expensive cars. He denied killing the girl but when they gave him more money and more work, he confessed to killing the girl, he confessed to killing the girl. The trial judge rejected the confession as evidence by saying that the pressure placed against the police to make him confess to the crime was far too overwhelming to be appropriate as evidence against him. If that is all they had against him, then he would be acquitted.
Jason Dix was accused in 1996 of killing two men by shooting them three times in the head while they worked at a packaging plant in Edmonton. The police attempted to get Dix to confess to the crime by staging an elaborate undercover operation. They flew him to Toronto to meet a fake mobster and help him count $1-million in cash. The undercover police also staged a fake murder in British Columbia in his presence so that he would believe that they were really mobsters.  They gave him jobs to do and paid him thousands of dollars in their attempt to get him to confess to the murders but he kept denying that he had anything to do with the murders of the two men. The first degree murder charges against him were dismissed in 1998 and in 2002, he was awarded $765,000 in damages for the 22 months he was in custody.
Sabastian Burns and Atif Rafay were accused of murdering Rafay’s parents and his autistic sister by bludgeoning them to death in their U.S. home. They then fled to Vancouver, British Columbia. The RCMP was asked for help in getting confessions from the suspects.  They pulled off that old standby, the Mr. Big scheme. Burns who was then 19- years of age was tricked into being part of the illusionary criminal underworld. He took part in minor crimes and was paid for his work.  The RCMP finally extracted a confession from both suspects. They were then extradited to Seattle. They were tried for the murders and convicted on the basis of their confessions.
 They appealed their convictions on the grounds that the manner of their confessions obtained was illegal in the U.S. Their appeals failed because the videotape of their confessions showed that they were laughing while describing the murders. They are serving life sentences for their crime.  

I hope that you have enjoyed reading this article as much as I enjoyed writing it. 

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