Can someone be tried four times for one crime?                             

In Canada and the United States, there are laws which state that no-one can be subjected to double jeopardy. For example, if someone is convicted of manslaughter, that person can’t be retried for murder. However, if a jury is deadlocked, a new trial can be ordered in both countries.  In Canada, if a person is acquitted, the prosecution in Canada can appeal that verdict of the jury. That can happen if the judge’s instructions to the jury were flawed. However, if new evidence is found that can convict the defendant, the appeal court will not order a new trial. Years ago, a child murderer was acquitted and he then admitted that he really did kill the child. Alas, he could be retried for the murder of the girl.  

There is a famous case in Canada in which Dr. Morgentaler, an abortionist was tried three times for the same so-called crime of performing an abortion. Each time the jury found him not guilty and each time the prosecution appealed. Finally the government said enough is enough and put an end to his trials. He was set free.

It is rare indeed that even in Canada a person can be retried four times for one crime. For example, Robert Bagerow was convicted of first degree murder after raping a nursing assistant and then strangling her. He was convicted in his first trial in 2001. He appealed and a new trial was ordered. The second and third trials were stayed because of hung juries and the Ontario Court of Appeal ordered a fourth trial because relevant evidence had been wrongly excluded in the previous trials. Defendants who have been re-tried multiple times in Canada eventually can seek to have the prosecution stayed as an abuse of process, and the Supreme Court of Canada has held that the Charter will permit a fourth trial only in “very rare cases.       

  

This article is about two men, Anthony Barnaby and David Caplin (both aboriginals from the Restigouche Reserve in Quebec, Canada) who were charged with brutally murdering two lesbian women in New Hampshire in 1988. They allegedly tied the two women up in the victim’s apartment in the city of Nashua and stabbed them repeatedly until they died. Their motive was that the victims had previously complained to the police that Caplin had stolen an item from their apartment. It is alleged Barnaby also threatened the couple and uttered anti-gay epithets against them the day before their bodies were discovered.

Both men were roommates who had been working in Nashua’s booming construction industry at the time of the slayings. Caplin previously had been charged but was never tried.

Two knives were found near the apartment, as well as two blood-stained socks believed to belong to their killers. If the blood is that of the victims it is evidence that whoever murdered the women wore those socks. Unless DNA can be retrieved from the knives and inside of the socks proving that the DNA belonged to those two men, those socks and the knives may not be useful to the prosecution.                                                                                     

Prosecutors say Barnaby made admissions to police about his and Caplin’s involvement in the killings, but the defence said he was coerced into making those statements after a long interrogation.     

There will have to be a trial within a trial to determine if his statement can be used against him and Caplin.

Barnaby walked out of a New Hampshire prison with a small bag of belongings slung over his shoulder after a jury had reached an impasse in his murder trial. He then returned to Canada. Caplin had previously returned to Canada. Now the State of New Hampshire wanted them back to face a new trial because of the new evidence. Now had they been tried and acquitted, then they would not be subjected to a new trial as per American law.     

The Canadian government agreed to turn both men over to U.S. authorities, but the men appealed their extradition orders. The Quebec Court of Appeal upheld the decision to surrender Caplin but said it would be unfair to put Barnaby through the “stress and tribulations” of a fourth trial, especially when the DNA evidence did not implicate him directly. Canadian government lawyers representing the U.S. prosecutors argued before the Supreme Court of Canada that it is something that should be decided in a New Hampshire court. Further, they said, preventing someone’s extradition should happen only in the most severe cases that “shock the conscience,” such as if a person is facing the death penalty or torture. They said that latter statement because Canada doesn’t have the death penalty and will not send a Canadian to any country that will execute that person. So even if they were sent to New Hampshire, it would be on the understanding that they would not be executed. Now I will explain to you how the Quebec Court of Appeal arrived at their decision. But first, some background re the charges against the two men.

Prior to Caplin’s trial in New Hampshire, his defence filed motions to exclude the forensic analysis of the pubic hairs and Mr. Caplin’s testimony from a pretrial hearing in Barnaby’s case. The motions were granted. The prosecution appealed to the New Hampshire Supreme Court. A stay of proceedings was granted pending the outcome of the appeal. The trial judge’s decision to exclude the evidence was affirmed. As a result, the prosecution entered a nolle prosequi (dismissal of charges) against Caplin. 

Barnaby case on the other hand, proceeded to trial on those charges on three occasions, between 1989 and 1990. Each of his trials ended in a hung jury. At the conclusion of the third trial, the prosecution entered a nolle prosequi (a dismissal of charges) against Mr. Barnaby.

In 2010, the New Hampshire State authorities reopened the investigation into the alleged crimes and in 2011, evidence seized from the crime scene was submitted for DNA testing not available at the time of the initial investigation. The DNA of Mr. Caplin was identified as being his.  Witnesses were again contacted. The new DNA evidence did not link Barnaby to the crimes.

New witnesses can additional information, although nothing in the Court of Appeal file indicated that that information would not initially have been available from those same witnesses earlier.

The case against both men was reopened. Meanwhile, both men had return to Canada so it was necessary for New Hampshire to extradite them back to Canada.

The Canadian Minister of Justice was provided with a letter from Mr. Mark Sisti, the American counsel who represented Barnaby at his previous trials in 1989 and 1990. Regarding Mr. Sisti’s letter, the Minister stated the following observation;

  

“A fourth jury trial, more than 20 years after the alleged murders, would be unprecedented in the State of New Hampshire and oppressive. Mr. Sisti submits that there are no facts, witnesses or circumstances which would make the fourth trial substantially different from the previous trials. According to Mr. Sisti, a fourth trial would be prejudicial to Mr. Barnaby because the witnesses’ memories will have faded due to the passage of time and the defence investigator has died. He points out that the crime scene is no longer preserved and almost every police officer involved in this case has retired, moved or passed away”. Finally, Mr. Sisti states that the passage of time is also prejudicial to Mr. Barnaby because his youth weighed heavily in his favour at his previous trials when the juries considered the voluntariness of his statements to police. (However) Mr. Sisti hasn’t addressed the new evidence summarized in the Record of the Case relating to the witnesses who are now willing to testify against Mr.Barnaby.” unquote

The witnesses in question are not new witnesses. It simply appears that they would now be “willing to testify”. Of course, they can be cross examined by Barnaby’s counsel at his new trial if he is extradited.

The Supreme Court of Canada dealt with a similar issue with respect to extradition of persons facing a trial elsewhere when it said in part;

“Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than one possible conclusion. The reviewing court’s role is not to reassess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister’s decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion on those facts.” unquote

The Court of Appeal said in part; “There is simply no precedent for submitting Barnaby to the stress and tribulations of a fourth trial on the same charges, particularly when the only true “new evidence”, in this instance, the DNA evidence, does not in any way implicate him and three previous juries did not once find him guilty.  The issue, therefore, is whether a fourth jury trial in these exceptional circumstances would, in the absence of any true new evidence linked to Barnaby, constitute an outrage, in his case, to the community’s sense of fair play and decency, so as to amount to an affront to the fundamental principles of justice applicable in both jurisdictions of concern, and thus constitute an abuse of process. The prosecution is not, after all, expected to go after an accused until it finds a judge or jury willing to convict. In the present case, a fourth trial would be contrary to the protection afforded by the (Canadian) Charter and his (Minister) decision to extradite does not constitute a defensible conclusion based on the alleged new facts in the case of Barnaby.” unquote

On the surface, that conclusion appears to be a reasonable position of the Court with respect to Barnaby.

The Court granted Barnaby’s Application for judicial review and to quash the Minister’s Extradition Order. In the case of Caplin’s application, the court denied his application and maintained the Minister’s extradition Order.

However, this case didn’t end just then. Both men appealed and the matter ended up in the Supreme Court of Canada. That Court said in part;

“The Minister’s decision to surrender Barnaby was reasonable but the Court of Appeal erred in finding otherwise. The issue before the Court of Appeal was whether extraditing Barnaby to face a situation in which he may be subjected to a fourth trial would be contrary to the principles of fundamental justice guaranteed by section 7 of the Charter so as to “shock the conscience” or otherwise be “unjust or oppressive” under  section  44(1)  of  the Extradition Act. The possibility  of  holding a fourth trial so many years after the alleged crime does not sufficiently violate our sense of fundamental justice to tilt the balance against extradition. Canadian case law (previous court decisions) suggests that fourth trials are permissible in some circumstances, and the United States case law takes a broadly similar approach. Barnaby will be able to raise all of his arguments about the unfairness of a fourth trial and his objections to the purported new evidence before the court in New Hampshire. The particular treatment awaiting Barnaby in New Hampshire cannot reasonably be seen as violating our sense  of  fundamental  justice so as to justify refusal  of  surrender. Further, a refusal of surrender is deeply inconsistent with the principles of international cooperation that are the foundation of an extradition treaty. Canada is expected to defer to the foreign courts on matters of due process. This is not a case in which intervention is warranted.”

The Supreme Court ordered that the Minister could enforce the extradition of Barnaby to New Hampshire. Why?

The Court  of  Appeal erred in concluding that there was no “true ‘new evidence’” against Barnaby. The New Hampshire prosecutor has certified that there was new evidence against Mr. Barnaby. Further, it had failed to consider the principle of comity (the informal and voluntary recognition by courts of one jurisdiction and the laws and judicial decisions of another) and of Canada’s international obligations. Certainly a refusal of surrender is deeply inconsistent with the principles of international cooperation that are the foundation of an extradition treaty. It has always been Canada’s position with respect to US courts that the US being a democratic nation would give accused persons a fair trial. There have been exceptions of course but there was no evidence before the Supreme Court that any New Hampshire court was one of those exceptions.  

Barnaby will be able to raise all of his arguments about the unfairness of a fourth trial before the court in New Hampshire, where his due process rights will be protected by Part 1, Article 14  of  the New Hampshire Constitution, as well as the United States Constitution. The New Hampshire court will have all of the witnesses and evidence before it and will be in a better position to determine if a fourth trial would be abusive in these circumstances.

The particular treatment awaiting Barnaby in New Hampshire cannot reasonably be seen as violating Canada’s sense of fundamental justice so as to justify refusal  of  surrender. In fact, it appears that broadly similar principles will be applied in New Hampshire as would be applied here in Canada in order to determine whether a fourth trial, under all of the circumstances, is fair and just.

He will be facing an uphill struggle trying to wiggle out of a fourth trial.  The new DNA evidence if accepted, would directly implicate Barnaby’s co-accused, Caplin. In doing so, it would also indirectly implicate Barnaby also because this evidence may very well be considered confirmatory of Mr. Barnaby’s prior statements that the two men committed the murders together. That may not happen if the court accepts his statement which he claimed he was coerced to make that statement.   

If they are convicted of first degree murder, they won’t be executed even though New Hampshire has the death penalty. This is because a condition of the extradition from Canada is that since Canada doesn’t have the death penalty anymore, New Hampshire authorities agreed to not execute the two men if found guilty. They will however be sentence to natural life in prison.