Why U of T Law needs an Innocence Project

Web Editor

Solange Davis-Ramlochan (2L) 

On July 6, 2002, 51-year-old Colin Moore and his brother Roger were hosting a charity event at an Etobicoke nightclub. When club regular Gary Eunick and two others were asked to pay the $10 cover, they got into a heated argument with the Moores. Eunich and another man, who witnesses identified as having “two-inch pinky dreads,” fatally shot Colin eight times, while Roger suffered a flesh wound to the head.

Police quickly traced the getaway vehicle to 19-year-old Leighton Hay’s family residence, where Eunich lived. Eunich was arrested for first-degree murder. Hay, who happened to be home when the police arrived, was also arrested, although at the time his short hair looked nothing like the dreads the witness described.

The Crown, relying primarily on a discarded newspaper containing Hay’s hair clippings and an electric razor, argued that he had returned home from the shooting and shaved his head in order to conceal his identity from the police. Hay was convicted of first-degree murder and attempted murder and, also a diagnosed schizophrenic, spent the past 12.5 years of his life heavily medicated in the psychiatric unit of two penitentiaries. On November 28, 2014, he was released after forensic testing confirmed his innocence.

An eyewitness identified Hay with 80% certainty in a photo line-up, noting he looked more like the shooter than the other 11 photos she was shown. Three weeks later, she was shown another photo line-up and bypassed Hay’s photo altogether. This alone should have been enough to undermine the Crown’s evidentiary burden, but it did not, and Hay’s factual innocence was stifled by the Crown’s misguided theory and some discarded hair clippings.

Wrongful convictions cast serious doubt on the legitimacy of our criminal justice system. They highlight the procedural and technical flaws in our prosecution system and its failure to protect the most disadvantaged individuals in our society. And putting innocent people in jail for real crimes allows those who are truly guilty to remain at large. Anthony Hanemaayer was 19 years old when he was arrested for a crime serial killer Paul Bernardo committed. Although he maintained his innocence, the “strength” of the eyewitnesses’ testimony lead Hanemaayer to accept a plea deal, landing him a sentence of two years less a day in prison rather than the likely six-ten years he would have received if convicted at trial. Bernardo went on to rape and kill at least three more women after Hanemaayer was imprisoned. When he later provided undisclosed details definitively exonerating Hanemaayer, neither the police nor the Crown attempted to inform Hanemaayer or rectify the grave error. It was not until this finding was brought to the attention of the Association in Defence of the Wrongly Convicted (AIDWYC) that Hanemaayer was acquitted.

The Innocence Project states that eyewitnesses contribute to 75% of convictions that are overturned through DNA testing. Both Hay and Hanemaayer offer evidence of the dire consequences of eyewitness error. Hay’s witness only confirmed his identity with 80% certainty, only to fail to point him out when prompted a second time. Not a single other person in the venue on the night of the shooting could point to Hay as the second shooter. What we were left with was a shaky eyewitness, and a Crown theory that for some reason was easier to accept than the truth.

Hay maintained that he was at home sleeping while the shooting occurred, but because of his prior criminal record for weapons possession, the police believed that they had reasonable grounds for an arrest. Tunnel vision prevented the prosecution from accepting his truth. Why flush the dreads but discard the bloody vest and ammunition in the laundry hamper? If he was so afraid of detection, why not just flush the hairs too? Why didn’t the police believe his family when they tried to tell them he never had dreads to begin with? Limitations in forensic science play a significant role in wrongful convictions, and can contribute to investigatory tunnel vision. While scientific evidence is highly controlling for an accused’s trial outcome, the reliability of forensic techniques, such as bite mark comparisons, shoe comparisons, and firearm tool mark analyses, has come under increased scrutiny in recent years.

False confessions and jailhouse informant testimonies also lead to wrongful convictions, as does systemic discrimination. In 2013, Aboriginals made up 4.3% of the national population, but contributed to 23.2% of the federal prison population. Donald Marshall’s wrongful conviction is a sad reminder of the systemic racism embedded in our criminal justice system. It begins with discretionary police powers and carries on into the sentencing regime. Moreover, conditions in pre-trial custody and favorable plea deals can force the innocent to choose the lesser of two evils. The sad truth is that the wrongful conviction cases that are publicized likely only scratch the surface of the number of people in this country that are convicted of crimes they never committed.

To date, AIDWYC has exonerated 20 wrongly convicted persons in Canada. But AIDWYC only accepts the most serious cases and any permanent criminal record will have a lasting negative impact on anyone’s life, regardless of the seriousness of the offence.

Let’s consider this hypothetical. X is 19 when he borrowed his friend’s car. X is black, and on his way to a party he picks up his friends C and D, not knowing that D has a gun. They notice a police car trailing them – surprise surprise – and the officer eventually signals for to X pull over. D takes off running and escapes. But now the officers have reasonable and probable grounds to arrest C and X. They search the car and find a couple ounces of marijuana in the trunk, charging C and X with possession for the purpose of trafficking. The charges against C are dropped, as he was not the driver or owner of the car, but the Crown refuses to do the same for X. Instead, he’s offered a significantly reduced sentence if he pleas to simple possession. X now has to make a decision. He can take his chances at trial, but he knows the evidence against him is pretty strong, and he has no intention of implicating the owner of the car. Or he can accept the plea deal. X’s choice is effectively between being labeled a ‘snitch’ which will have its own social repercussions or having a permanent criminal record for drug possession which will definitely hinder his employment prospects. Fearful of going to trial, or perhaps sitting in pre-trial custody, many who are factually or legally innocent are pressured into accepting plea deals.

So what can we, as law students in the pursuit of a just legal system, do to help the wrongfully convicted? Here at U of T Law, there is interest in an Innocence Project, but unlike many other Canadian and American law schools, we have yet to initiate one. The criminal division at DLS receives more volunteer applicants than it can accommodate every year. Our recently established criminal appellate externship has a limited intake of four students each year. We should expand the clinical education opportunities available to student interested in criminal law, helping those wrongfully imprisoned regain their human dignity. With the new building beginning to show some progress, the time is ripe to establish our own version of an Innocence Project.

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