All systems are prone to error and our justice system is no exception.
At one pole, errors in the justice system manifest themselves in “wrongful acquittals,” with perpetrators, although duly apprehended and brought before a court, escaping punishment for their crimes.
We hear a lot about such errors, either real or imagined, especially when high-profile cases founder, often because of what are described as technicalities, and a hue and cry goes up for reform of our justice system in the name of law and order.
At the other pole, errors in the justice system manifest themselves as wrongful convictions, with innocent men and women sent to prison to pay for crimes they did not commit. We may hear less about these sorts of errors because they tend to come to light only years after the original convictions and the convictions themselves may generate little or no publicity at the time. When they do come to light, however, they too arouse strong emotions.
Different societies weigh these errors differently. “Blackstone’s ratio” encapsulates the traditional English view of the matter with the aphorism, “Better that ten guilty persons escape rather than one innocent suffer.” Benjamin Franklin upped the ratio to one hundred guilty to one innocent. Reflecting his authoritarian approach (one arguably reflected more recently in elements of the Bush administration’s tactics in its “war on terror”), Bismarck reportedly countered that it is better that ten innocent men suffer than that one guilty man escape.
Canada’s criminal justice system clearly reflects the Blackstone view, with the burden imposed on our prosecutors to prove guilt “beyond a reasonable doubt” intended to prohibit conviction of even the “probably guilty.”
Yet wrongful convictions have still persisted.
In Justice Miscarried: Inside Wrongful Convictions in Canada, Hélèna Katz tells the story of a dozen wrongful convictions in Canada spanning the last three decades of the 20th century. She recounts the efforts, notably by the Association in Defence of the Wrongly Convicted, to expose these miscarriages of justice, to exonerate the innocent men (there are no women’s stories in the book) and to provide some restitution for what they have suffered.
The stories are poignant and provide useful reminders of the terrible human cost when justice miscarries in this way. David Milgaard spent 23 years in prison for a murder he did not commit and that even the relatively primitive forensic tools available at the time suggested that he could not have committed. Although innocent, he escaped from custody and was shot in the back during this apprehension by the RCMP.
Donald Marshall was imprisoned for over a decade, largely because of racist assumptions by the police investigating his case. During that wasted decade, he suffered serious physical impairment because of poor medical treatment.
Ronald Dalton spent ten years in prison because the police and Crown convinced themselves and a judge that Dalton had strangled his wife, when in fact the evidence should have been clear that she had choked on cereal.
Michel Dumont spent six years in prison based on inaccurate eyewitness testimony, despite the attempts of the eyewitness to recant her erroneous identification.
William Mullins-Johnson spent over a decade in prison convicted of sexually assaulting and murdering his niece, based on a wildly inaccurate interpretation of the little girl’s autopsy by forensic pathologists apparently unfamiliar with elementary principles of children’s anatomy, probably supplemented by prejudice generated by the fact that he was aboriginal. In fact, the child had died of natural causes, but for the decade of his incarceration, Mullins-Johnson was treated by his jailers and his fellow inmates as a homicidal child molester. Rather than trying to escape, he attempted suicide.
The depressing stories go on. Innocent men are treated as criminals even after they are released. Marriages break up. Children grow up without their fathers. Years are uselessly wasted and when the truth comes out, the relatives of the victims of these crimes now find themselves deprived of the false closure the wrongful convictions had previously provided.
Katz is a good storyteller. Her narratives are crisp, clear and to the point. The reader is made to see how injustice is done and to understand its consequences. She makes the case for the importance of compensation and, at the same time, she makes clear how inadequate a concept “compensation” turns out to be in such circumstances.
Given her heavy apparent reliance on AIDWC as a source, Katz’s emphasis on improving the response to wrongful convictions and on the impor-tance of adequate measures to redress the injustice suffered by the wrongfully convicted is understandable. There is little doubt that no matter how the justice system is tweaked, there will always be a danger that miscarriages of justice will occur and we will need to ensure some manner of compensation for the victims of such injustice.
Katz’s approach does mean, however, that there is comparatively little analysis of the issue of wrongful convictions from the perspective of the justice system itself rather than from that of the wrongly convicted. When causes are discussed, the discussion mainly focuses on the failings of individual investigators, prosecutors and forensic experts (interestingly, defence counsel and judges are largely spared from critical scrutiny, although the failings of individuals in each category undoubtedly contributed to some of the wrongful convictions Katz recounts). This leaves the reader with little insight into the prevalence of wrongful convictions (especially since Katz restricts herself to murder and sexual assault cases), their root causes, the kinds of reforms that have already been undertaken in response and the impact of these reforms.
The cases described in Justice Miscarried extend back into the 1970s and ’80s. Recurring themes in these earlier cases include abusive interrogation tactics by police, uncritical reliance on the testimony of witnesses such as jailhouse informants, who may have ulterior motives for coming forward with stories of “confessions” by the accused and—perhaps most importantly—over and over again police or prosecutors fail to disclose key pieces of evidence to the defence.
Each of these issues has been addressed by the criminal justice system.
Passage of the Canadian Charter of Rights and Freedoms, with its emphasis on the rights of persons accused of criminal offences, has meant that abusive police tactics run the self-defeating risk of leading to acquittals, and consequently allegations of the use of such tactics by the police have declined dramatically. Most Canadian jurisdictions have also put stringent restrictions on the use of the evidence of jailhouse informants.
There has also been a sea change in what the police and prosecution are required to disclose to the lawyers for the accused. Up to 1991, the standard practice in Canada was for the defence to be given the material upon which the Crown intended to rely in making its case, as well as any material the Crown believed tended to exculpate the accused. As Katz’s narratives demonstrate, even that standard was not always honoured. Since 1991, however, the Supreme Court of Canada decision in Stinchcombe has made it clear that a person accused of a criminal offence is entitled to receive all material the police or prosecution have that is “potentially relevant” to the case, regardless of the prosecution’s views as to its actual relevance or usefulness to either side. The Supreme Court of Canada decided that it should be up to the accused person to decide what is relevant to his or her defence, not up to the police or prosecutors. Failure to make full disclosure can and usually will lead to an acquittal.
In the later cases in Justice Miscarried (covering roughly the period from 1990 to 2000), a somewhat different pattern emerges. Here, the main systemic cause for wrongful convictions appears to be inadequate forensics, including botched visual identification, false confessions and, most notably, completely inaccurate conclusions by forensic pathologists.
Our court system, in both its civil and criminal aspects, seems distressingly prone to junk science. During the 1980s and ’90s, innocent men and women were incarcerated, lost custody of children or were hit with huge judgements for damages by courts in thrall to the bogus notion of “recovered memory syndrome.” Small wonder that shoddy science, particularly the testimony of incompetent pathologists, could lead to a raft of false convictions during these years.
The spectacular revelations of the Public Inquiry into Pediatric Forensic Pathology in Ontario (more commonly known as the Goudge Commission) laid bare not only stunning incompetence, but also breathtaking hubris on the part of alleged experts upon whom the courts and, all too often, hapless defence counsels were forced to rely. The commission led to the adoption of sweeping changes in the training and accreditation of forensic “experts” who testify in criminal cases and these, one hopes, have reduced the gullibility of judges and defence counsels alike in uncritically accepting their conclusions.
For some, even these changes are not enough and there is a growing call for “equality of arms,” that is, a demand that the defence, usually at public expense, be given financial and scientific resources to produce its own forensic analyses and reports so as to counter the Crown’s experts.
What all this means is that absent conscious malice, most, although perhaps not all, of the stories in Justice Miscarried simply could not happen in today’s justice system. That of course does not mean that the stories are irrelevant or that it is not important to address the remaining issues or to be vigilant precisely for instances of malice and abuse.
It does, however, require us to think through some further issues, because all of these important advances to date also have corresponding costs associated with them.
A good touchstone is England. The current disclosure rules in England are still essentially those that were in effect when David Milgaard was wrongfully convicted. That fact helps explain why today, cases in England can proceed to a verdict in less time than it would take in a parallel Canadian case for the police even to comply with their pre-trial disclosure obligations, why Canadian trials take far longer and cost far more than English ones, and why presumably guilty individuals are set free in Canada as the result of technicalities related to what they were given by way of evidentiary disclosure before trial.
In terms of changes to how science is handled in the courtroom, adding “defence experts” to balance “prosecution experts” does accord with the assumptions of our adversarial system, but it does not necessarily improve the accuracy of the “science” involved. For corroboration one need look no further than the treatment of DNA evidence in the O.J. Simpson trial or, historically, of Breathalyzer evidence in impaired driving cases in Ontario. What does happen, though, is that both the length and the cost of trials increase.
Here again England provides a useful comparison. Rather than countenancing an escalating courtroom arms race in scientific testimony, the English justice system is attempting to remove the partisan nature of expert testimony and to have experts treated as the court’s witnesses, rather than as partisans for either side. This is the opposite to the apparent trend in Canada.
So again we return to Blackstone’s ratio. It is almost inevitable that a consequence of attempts to lower the rate of erroneous convictions will be to raise the rate of “erroneous acquittals” as well as to increase the cost of the justice system for taxpayers. Blackstone and Benjamin Franklin had a very high tolerance for these costs and Justice Miscarried reminds us of the moral justification for such an assessment. For that reason alone it is a valuable contribution to an increasingly polarized policy debate.
Mark J. Freiman practises law at Lerners LLP in Toronto. He is a former deputy attorney general for Ontario. In his private practice he has appeared on a wide variety of human rights matters, including acting on behalf of the Canadian Civil Liberties Association.