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 Guy Paul Morin 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: Robert Baltovich Greg Brown Jr. (Pennsylvania, USA) Christopher Bates Kevin Cooper (California, USA) Wilbert Coffin Cy Green, (New York) Ronald Dalton Robert Hilliard (Louisiana, USA) James Driskell William Mayo (Georgia, USA) Randy Druken Leonard Peltier (North Dakota, USA) Clayton Johnson Johnnie Savory (Illinois, USA) David Milgaard 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 Steven Truscott 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, Thomas Sophonow, 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 Paul Bernardo. 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.