Association in Defence of the Wrongly Convicted - Internship Report

The criminal justice system is a human enterprise; it sometimes fails. The cost, inevitably, is the loss of liberty and livelihood for the tragic victims of these systemic errors. The cases of those exonerated disclose disturbing fissures. In Canada's criminal justice system. Sadly, these errors also leave true perpetrators on the streets while the innocent are incarcerated. 1

Summary

This report is a brief description of my summer experience at the Association in Defence of the Wrongly Convicted (“AIDWYC”). My placement with AIDWYC started at the beginning of May and ended in the middle of July 2008 (10 weeks). I chose to do my placement at the AIDWYC for a number of reasons. The first being that AIDWYC work relates directly with want I wanted to do in my legal career. My desire to intern there was the fact that AIDWYC acts as an advocacy agency, providing legal education and reform, as well as a resource centre for those in the wrongly convicted community. In the context of my goals, I wanted to learn more about the complexities of institutional and systemic barriers and the legal and social options for change. Overall, I have an interest in the relationship between social justice and criminal law, and I wanted to gain practicial legal experience in those areas. I enjoyed my time with AIDWYC, and would highly recommend it as a placement option for future students.

AIDWYC Profile*

Injustice anywhere is a threat to justice everywhere . – Martin Luther King.

Based in Toronto, Ontario, AIDWYC is a not-for-profit human rights organization dedicated to preventing and rectifying wrongful convictions founded in 1993. AIDWYC is the successor to the Justice for Committee . The Committee was a grassroots organization that formed to support Guy Paul Morin immediately following his wrongful conviction. AIDWYC has a formal chapter in Manitoba, and informal chapters currently forming in Newfoundland and Alberta.

At present in Canada, there is no system in place for an independent review of claims of wrongful convictions. As such, AIDWYC fills this gap by attracting some of the top legal experts in Ontario to identify miscarriages of justice, and where warranted, prepare an application for ministerial review to the Criminal Conviction Review Group, known as the Criminal Code ‘section 696.1 application.’

With over 100 cases submitted a year, AIDWYC’s clients are mostly poor individuals who have exhausted all their legal avenues for relief. AIDWYC mandate is currently limited to murder convictions where the accused is factually innocent. 2 The cause of the wrongly convicted has taken on new significance in the wake of high profile cases in which AIDWYC has been directly involved, most recently Anthony Hanemaayer. AIDWYC has also intervened on a number of cases, such as Hill. v. Hamilton Wentworth Police Services Board et al. 3

AIDWYC is a primarily volunteer organization, with 30 lawyers and approximately 140 volunteers, including, journalists, activists, and law students. AIDWYC raises public awareness about ensuring the integrity of the criminal justice system. Full-time, paid employees are the Executive Director, and the Director of Client Services. In 2008, the Volunteer Coordinator was a new position made possible by the Ontario Trillium Foundation.

1 See Association in Defence of the Wrongly Convicted, online: < http://www.aidwyc.org/about/>. *The following description of AIDWYC ‘s profile taken from AIDWYC website. 2 ‘Factually innocent’ – where proof exits (through DNA or other means) that a person was not involved in anyway with the murder. 3 [2005] O.J. No. 4045, 76 O.R. (3d) 48 (QL).

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 1

Process of Review

In general, AIDWYC receives applications for assistance from wrongful conviction claimants on a routine basis. These are assigned to volunteers to review and assess. In the review process volunteer lawyers and students are assigned to do a case review, including obtaining documents. Following the initial review, the supervising lawyer refers the case to AIDWYC’s Review Committee to determine whether the case meets AIDWYC’s criteria. The criteria is assessed by the Board for approval, where they make recommendations for adoption (if Canadian), endorsement (case is either supported by another group or individual, or US or international) or rejected. 4

The review process takes anywhere from 6 months to 5 years or longer on some occasions, depending on the amount of evidence, level of investigation necessary, or other information required, such as forensic testing. AIDWYC then actively prosecutes the claims of those whom it believes as having been wrongly convicted. At present, AIDWYC has been involved in 18 exonerations, and just fewer than 100 cases are under review (47 Canadians, 46 U.S. cases). Below is a brief table of a few high-profile cases that AIDWYC has been involved with:

Table 1.

Current Adopted Cases: Current Endorsed Cases: Greg Brown Jr. (Pennsylvania, USA) Christopher Bates Kevin Cooper (California, USA) Wilbert Coffin Cy Green, (New York) Ronald Dalton Robert Hilliard (Louisiana, USA) William Mayo (Georgia, USA) Randy Druken Leonard Peltier (North Dakota, USA) Clayton Johnson Johnnie Savory (Illinois, USA) Max Soffar (Texas, USA) William Mullins-Johnson Scott Watson (New Zealand) Gregory Parsons Tim Fonseca (California) Romeo Phillion Michel Dumont (Quebec, Canada) Kyle Unger Gaston St. Pierre Sherry Sherett Frank Ostrowski Erin Walsh

Description of Work Completed

Prior to my placement, I spoke with the Executive Director of AIDWYC, Tanya Gerber. I was told that I would be involved in working up to five cases, following the Goudge Inquiry into Pediatric Forensic Pathology (Dr. Charles Smith). As well, my work possibly would involve case reviews, summary writing, investigation, assistance on section 696.1 ( Criminal Code ) applications to the Minister of Justice, and possibly case summaries for the AIDWYC Journal and general administration on case files, such as photocopying and document delivery.

4 Endorsed cases are provided a lower level of intervention, as AIDWYC’s resources are primarly for Canadian cases.

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 2 Once I started, I mainly worked out of Lockyer Campbell Posner (“LCP”). LCP is a criminal law firm established in 2005. Based in Toronto, LCP provides criminal, and quasi – criminal defence at both trial and appellant levels. LCP cases are diverse, ranging from drug, homicide to cases of miscarriages of justice. 5 Senior partner of LCP, James Lockyer, is a founding director of the AIDWYC. Lockyer acts on almost, if not all, of the cases that AIDWYC is involved with. I also worked with senior partner, Phil Campbell, whose extensive work includes reversal of wrongful convictions cases. My direct supervisor was Joanne McLean, also a founding director of AIDWYC, she is a sole practitioner working exclusively in criminal defence and primarily on wrongful convictions. She represented Guy Paul Morin, David Milgaard, , Robert Baltovich and others.

My work was determined depending on LCP needs, and my interest. In short, I had to compile cases, prepare files for review, obtain materials, draft letters, prepared records, conduct legal and non-legal research, and send items for expertise- which were to be completed before putting together a complex 696.1 applications to the Minister of Justice.

The following is a brief summary of the main assignments/tasks I worked on:

1. Public Inquiry - Calls for Baltovich Inquiry

A week before I started my placement at AIDWYC, Robert Baltovich 6 had just been acquitted in the 1990 murder of Elizabeth Bain. Baltovich was 24 years old when he was sentenced to life in prison. Baltovich always maintained his innocence, and in 2000, AIDWYC filed a defence brief at a bail hearing arguing that there was new evidence to suggest that Baltovich was innocent and the real perpetrator was . After spending 8 years in prison, Baltovich was released on bail and the Ontario Court of Appeal squashed his conviction in 2004 because of errors by the trial judge. A new trial was ordered. In April 2008, jury selections proceeded and the trial began. However, on April 22 nd , the Crown withdrew its case against Baltovich and he was acquitted by the jury. The Baltovich case went through the courts for 18 years with nothing other than circumstantial evidence.

When I started AIDWYC lawyers were meeting with the Attorney General of Ontario, the Honourable Chris Bentley, to discuss the calls for a public inquiry. One of my first opportunities at LCP was to help prepare reasons to support a public inquiry into the Baltovich case. I participated in a ‘brainstorming session’ with McLean. In order to prepare for the meeting, I had to research the strengths and weaknesses of another public inquiry of wrongful convictions, and specifically the need in the Baltovich case; this required that I researched the case, and determine the possible reasons the Attorney General would be against it. My reasons for an inquiry included:

o Holding the system to a higher standard, and improve the system of justice o Public Inquiry can create and restore public confidence in the administration of justice; o Checks and balance on the system; o Explore the conduct of police and prosecution; o Explanations as to why the prosecution of Baltovich went on for 18 years? And why it was abandoned at the last moment? o Bain, Baltovich and the public are owed explanations; o It could provide the opportunity for the public to evaluate the weakness of the case; o The murder still remains unsolved – air of mystery to the case; o Involvement of Paul Bernardo; and o The case has left Baltovich in a no-man’s land between guilt and innocence.

Unfortunately on May 16, 2008 the Attorney General announced there would be no public inquiry into the case, as another inquiry would not provide additional information to strengthen the administration of justice. While I was disappointed with the AG dismissal for public calls for an inquiry, I was able to

5 *Information available of Lockyer Campbell Posner - http://www.lcp-law.com 6 R. v. Baltovich , [2008] O.J. No. 987, 47 O.R. (3d) 761 (QL).

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 3 participant and witness first hand what was involved in policy discussion, legal reform, and strategies in advocacy.

Causes of Wrongful Convictions

During my placement, I also wanted to learn more about the principle causes of wrongful convictions and the ways in which one can address systemic issues. My time at AIDWYC, and LCP I learned that there are many systemic reasons why wrongful convictions occurred. In other words, it would not be accurate of me to point my finger at one single culprit, that is, the police, prosecutors, defence lawyers, trial judges, appellant courts, or legislators. They are truly interconnected. Rather I learned that there are number of reasons why wrongful convictions occur:

o mistaken identification o police misconduct o tunnel vision o prosecutorial misconduct o defective or fraudulent science o bad lawyering o false eye-witness testimony o jailhouse informants o false confessions o mishandling of alibi witnesses o racial bias

2. The Dynamics of ‘New Matters of Significance’

(i) False Confessions/ Prosecutorial Misconduct

False confessions are not always promoted by ones internal knowledge or actual guilt, but sometimes motivated by external forces, such as duress, diminished capacity, and misunderstanding of the situation.

Romeo Phillion 7

In 2001, in conjunction with the Osgoode Hall Innocence Project, AIDWYC lawyers submitted an application to the Minister of Justice under section 696.1 on behalf of Romeo Phillion. Phillion was convicted in 1972 of the 1967 non-capital murder of firefighter Leopold Roy. Five years after the murder, Phillion, unexpectedly confessed to the stabbing when he was arrested for a robbery. But within hours, Phillion quickly recanted. Phillion has been fighting for his innocence since then. In 2003, after spending 31 years in prison, Phillion was released on $50,000 bail while awaiting the Justice Minister's decision on his application. 8 In 2006, the Minister referred his case to the Ontario Court of Appeal for review where it is now pending.

At the heart of any 696.1 applications is the suggestion that new information has been discovered which raises serious doubts about a conviction. In the case of Phillion, this new information relates to three distinct areas:

1. New evidence of Phillion’s alibi (a police report indicating Phillion was more than 200 kilometers from the crime scene), 2. The Crown’s failure to disclose material evidence, and

7 [2003] O.J. No. 3422 (QL). 8 * As condition of bail Phillion receives support from John Howard Society.

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 4 3. New expert evidence that Phillion’s confession is inherently unreliable (when Phillion was convicted the phenomenon of false confession was not well known).

If Phillion’s innocence is proven in court, his jail time would make him the longest-serving wrongfully convicted prisoner in Canadian history. About 80% of my time at LCP was spent working exclusively on the Phillion case. As mentioned, the case is currently at the Court of Appeal. My role was to conduct both legal and non-legal research on the Crown expert, forensic psychiatrist based in New York City, Dr. Michael Welner, and the defence expert Gisli Gudjonsson. In my final week, the defence expert in false confession was cross-examined in London, England. The cross-examination of the Crown’s expert was to be heard at the Court of Appeal at the end of my placement. The legal submissions of Phillion’s appeal are scheduled for mid- November 2008.

I organized the files relating to Phillion case; conducted extensive research on false confessions; read and prepared summaries of transcripts, and evidence; researched case law; coordinated networks with psychologist and lawyers in U.S.; investigated any weaknesses in Dr. Welner’s works, testimonies, and publications; prepared memorandums on both experts, and prepared appellant records. In short, I helped prep for the examination of both expert witnesses. Overall, my research in this area exposed me to the phenomenon of false confessions, standards of peer review, and the role of expert testimony. I was also exposed to the rules of evidence, and what is required in preparation for examination of expert witnesses at the appellant level.

(ii) Eye Witness Identification

Eye Witness misidentification is the single most common cause of wrongful convictions.

Anthony Hanemaayer 9

In 1989, 19-year-old Anthony Hanemaayer was charged with break-and-enter and assault with a weapon (a knife), on a 15-year-old girl who was asleep in her bedroom. The girl’s mother entered the bedroom and briefly saw the attacker. In a photo line-up the victim picked Hanemaayer. On the advise of his lawyer, Hanemaayer pleaded guilty in exchange for a sentence of 2 years less a day. Terrified, Hanemaayer took the ‘deal’. In 2006, Bernardo admitted to the crime during a jailhouse interview to the police. Bernardo approached the police, through his lawyer, with a list of unsolved crimes he wanted to discuss. It was through the course of their work to clear the name of Robert Baltovich, that AIDWYC uncovered Bernardo’s confession. AIDWYC informed Hanemaayer of the confession, and took on the case. In June 2008, his guilty plea was withdrawn, conviction set aside, and acquittal was entered.

I was able to prepare materials and conduct searches under public records systems to prepare for (submissions) Hanemaayer’s acquittal.

(iii) Defective or Fraudulent Science

The Inquiry into Paediatric Forensic Pathology in Ontario (the “Goudge Inquiry”)

Since its inception, AIDWYC has participated in all public inquires related to wrongful convictions. In 2007, AIDWYC participated in what may be the most significant inquires in Ontario in the area of wrongful convictions, the Inquiry into Pediatric Forensic Pathology in Ontario (the “Goudge Inquiry”). The Commission's mandate was to conduct a systemic review and to assess “the policies, procedures, practices, accountability and oversight mechanisms, quality control measures and institutional arrangements of pediatric forensic pathology in Ontario from 1981 to 2001 as they relate to its practice and use in investigations and criminal proceedings”. 10 The Commission is to make recommendations to restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in

9 R. v. Hanemaayer , [2008] O.J. No. 3087 10 Opening statement by Commissioner Goudge – June 28, 2007

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 5 investigations and criminal proceedings. The Commission’s final report to the Attorney General will not be released until October 1, 2008.

AIDWYC is working on nine cases stemming from the Goudge Inquiry ; all cases are at various stages. Each case was revisited in the review of criminally suspicious pediatric autopsies that had been conducted after 1991 by former pathologist Dr. Charles Smith. In each case, I prepared materials, including drafting letters, in order to make an application to the Minister of Justice, as an alternative route of re-opening of the case, to bring an application for an extension of time to seek leave to appeal the convictions and to request a reference back to the Court of Appeal. I was able to work on three (3) cases:

Baby Girl F

In 1998, 18-year-old mother of Baby Girl F was charged with infanticide. According to Dr. Charles Smith medical evaluation of Baby F indicated that there were no signs of medical problems, and the cause of death to be asphyxia/anoxia. The mother pleaded to a lesser sentence, and was sentenced to 2 months conditional sentence, 3 years probation, and 150 hours of community service. AIDWYC is currently assisting in the review of the conviction.

Baby Wynne

In 1995, an Aboriginal woman was convicted of second-degree murder of her 2 ½ year old son. The woman is now serving the 13 th year of her sentence. In 1998, her appeal of her conviction was dismissed. Dr. Charles Smith conducted baby Wynne’s autopsy. According to Dr. Smith, the child died of possible strangulation. Specifically, Smith categorized Baby Wynne’s death as a suffocation caused by obstruction to the airways (nose and mouth). The mother has always maintained her innocence. The Chief Coroner’s office has now had the case reviewed by another pathologist, who disagrees with Smith’s opinions. Baby Wynne had a complicated medical history. AIDWYC was retained to have the mother’s conviction for second-degree murder set aside.

During my placement, I spent quite some time on preparing materials needed for defence pathologist to review the case, bail application; organized the case files; coordinated with services, such as Toronto Bail Program; and interviewed the client.

Baby S

Under police intensive questioning, the stepmother of Baby S confessed that she hit the child once. The stepmother was advised to take the Crown’s offer, and pleaded to manslaughter. According to Dr. Charles Smith, the child died from baby shaken syndrome. Baby S had history of seizures. AIDWYC is currently assisting in the review of the conviction.

Near the end of my placement, I worked on organizing and itemizing the case file, and prep materials for the 696 applications

* NB: there is publication ban on the cases involved in the Goudge Inquiry .

3. Miscellaneous

During my placement, I also participated in the following miscellaneous activities:

o Fundraising: AIDWYC hosted a major benefit concert ‘ Sounds Like Justice 4 ’. There was a press conference, and auction. Members of the wrongful convicted community were in attendance. I was the ‘Assistant’ to the Volunteer Coordinator.

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 6 o Special events: created contact sheets, name tags, and auction sheets for the event. o Reviewed Paul Bernardo 2006 interview, which was to be presented as evidence in Baltovich's most recent court case, and read materials for submissions giving permission to media outlets to broadcast a videotaped police interview with Bernardo. o Help with the preparation for the Hanemaayer press conference; o Read and prepared summary of transcript, including ‘Statements of Admissions made by Paul Bernardo’ in 2006 o Assisted with examining statements, and investigator’s notes; o General administration on case files, such as photocopying and filing.

Evaluation of AIDWYC as a Host Organization

Overall, I had an excellent experience at AIDWYC, and I enjoyed working with the senior lawyers at LCP. Early on, I was asked about my interests, and from the beginning, my supervisor made me feel comfortable. In the end, I felt very fortunate to be exposed to her expertise.

I spent my first week at the AIDWYC office, and enjoyed my interaction with the staff, and the many volunteers who made their way through the office. The relationships that I was able to form and continue with the staff have been a meaningful part of my experience. Working with AIDWYC gave me a deeper appreciation of the complexities involved in miscarriages of justice, as well as working within an organization that does both litigation and policy development was a unique opportunity.

My time at AIDWYC and LCP has strengthened my interest in criminal law, social justice, and policy reform. In LCP’s challenging environment, I was able to gain practice legal skills, including research and writing skills, litigation strategies, and client interviewing. I further develop my time management, organizational, and interpersonal skills. I learned the importance of accuracy and detail, namely, proofreading all correspondence. There were times when I was asked to drop what I was doing and work on something else, opportunities as such instilled in me the importance of prioritizing task. I worked mostly independently during my placement. There were times I corresponded only by email. With little direction, I strengthened my problem solving skills, and managed many responsibilities.

In my first week, at the ‘ Sounds Like Justice 4’ concert, I was able to meet William Mullins- Johnson, Robert Baltovich, and others from the wrongful conviction community. It was a fascinating moment to see the faces of those who have been wrongfully convicted. It was an amazing experience. While both men are still adjusting to life after years of fighting for their freedom, they were welcoming and honest about their experiences through the criminal justice system. Throughout the rest of my placement, I would continue my relationship with some of the individuals in the wrongfully convicted community. Further, one of the highlights of my experience at my placement was witnessing the Court of Appeal render the Hanemaayer decision. This was because I was able to participate in the case, and then witness his vindication. It was incredible to observe oral advocacy, and this type of justice first hand.

Challenges Encountered

I was originally surprise that I would not be directly working at the AIDWYC office, but rather in a criminal law firm as an ‘AIDWYC’ student. As such, I was only allowed to work on AIDWYC cases. I found the firm to be fast-paced, demanding, and at the same time an informal environment. At first, I was extremely quite. In general, it takes me some time to get over my nerves, and the intimidation factor of working with such well-known lawyers. As a result, it took some time for me to figure out the dynamics of the firm. It also took some time for the lawyers to get to know my work capabilities. Once I realized this is was happening, things got better because I adjusted and I noticed how work in one area would lead to work in another area, and my experiences started to build. While I enjoyed working independently, as the ‘AIDWYC’ student in the firm, there were times that it limited my interaction with the other lawyers. As a result, I was forced to come out of my comfort zone, and interact with others.

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 7 Finally, I was given the opportunity to personally visit one of the clients stemming from the Goudge Inquiry at the Grand Valley Prison for Women (federal correctional institution). However, because the information was needed as soon as possible, and my CPIC clearance would take about 7-10 days, one of the lawyers in the firm went instead. This was probably my biggest setback. I was extremely disappointed.

Suggestions

I would highly recommend AIDWYC as a host organization for future students. My suggestion to any student, who is contemplating AIDWYC, is to visit the organization and meet, in person, the Executive Director, Director of Client Services, and/or Volunteer Coordinator. They are extremely friendly. This is what I did before submitting an application for the fellowship. This gave me the opportunity to share my interest with AIDWYC, and learn about its mandate. It also allowed me to introduce myself to the staff and get a taste of the environment.

Impact of This Work

Given that I plan on pursuing a career in criminal law, AIDWYC provided me with realistic exposure to the criminal justice system, and the life in a firm environment. I was able to establish relationships with some of the best defence lawyers practicing criminal law. The fellowship provided the chance to see work at a successful criminal defence practice and promote justice through working on AIDWYC cases. Ultimately, I learned about the causes of wrongful convictions, and possible remedies.

To know, 15 years ago, that AIDWYC started with a group of people in a basement of a house, and now has developed a well-earned reputation as the advocates for wrongly convicted Canadians is inspiring. AIDWYC’s ability to overturn decade-old cases is a long process involving years of work. It requires dedication and commitment to the integrity of the criminal justice system. I was given a snapshot into the working of a primarily volunteer-based non-profit organization.

I came to law school as a way to enhance my advocacy skills and to develop strategies to use law as a tool for positive social change. My experiences at AIDWYC helped build confidence in myself as a student, and as a future lawyer. My time at AIDWYC was invaluable. As such, I have asked to continue with AIDWYC as a volunteer and receive work remotely. In the end, I benefited directly from the exposure from highly regarded criminal lawyers, such as James Lockyer, Joanne McLean, and Phil Campbell, and others from Lockyer Campbell and Posner.

Thank you for this opportunity. AIDWYC also extends a thank you for providing the fellowship program.

*Enclosed is the AIDWYC Journal Spring 2008 – Volume 9.

Social Justice Fellowship – AIDWYC Placement Report 2008 – Andrea Anderson 8