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.
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