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Canadian Federal Report Miscarriages of Justice – International Comparisons Footnotes

[2] R.H. Gault, Find No Unjust Hangings, 3 J. Am. Inst. Crim. L. and

Criminology 131 (1912-13).

[3] Ibid. at page 131.

[4] Ibid.

[5] Ibid.

[6] Carolyn Strange, Comment: “Capital Case Procedure Manual”, (1999), 41 C.L.Q. 184.

[7] State Indemnity for Errors of Criminal Justice, by Edwin M. Borchard, Law Librarian of Congress, with an editorial preface by John H. Wigmore, Dean, Northwestern University School of Law, to accompany the Bill (Section 7675) to grant relief to persons erroneously convicted in courts of the United States, (Washington: Government Printing Office, 1912).

[8] Ibid. at page 8.

[9] Ibid.

[10] Eric R. Watson, Adolf Beck (Toronto: Canada Law Book Company, Ltd.). The Beck case ultimately led to the establishment of a Court of Criminal Appeal in the United Kingdom.

[11] Borchard, supra., at page 5.

[12] Ibid. page 20.

[13] Garden City Publishing Company: Garden City, New York, 1932.

[14] Ibid. at page vi.

[15] Ibid. at page 369.

[16] Ibid. at page 372.

[17] Ibid. at page 369-70.

[18] Ibid. at page 371.

[19] Not Guilty, by Judge Jerome Frank and Barbara Frank, in association with Harold M. Hoffman (Doubleday and Company, Inc., Garden City, New York, 1957.) Jerome Frank died following the last changes to the manuscript and Barbara Frank pursued publication with an endorsing foreword by William O. Douglas, a justice of the Supreme Court of the United States.

[20] Ibid., at page 200.

[21] Ibid. at page 202.

[22] Ibid. at page 210; to the same effect, see R v Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), in which the Court, at page 451, noted literature which suggests that witnesses are inclined to fill in perceived events with other details: “They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes.”

[23] Frank, supra., at page 213.

[24] Ibid. at page 212.

[25] Frederick Muller Limited, London, 1960.

[26] Ibid. at page 6.

[27] Ibid. at page 266.

[28] Ibid. at page 267.

[29] Ibid. at page 268.

[30] Ibid. at pages 177-8.

[31] Edward D. Radin, The Innocents (New York: William Mauro and Company, 1964).

[32] Ibid. at page 35.

[33] Ibid. at page 230.

[34] Ruth Brandon and Christie Davies, Wrongful Imprisonment (London: George Allen and Unwin Ltd, 1973).

[35] Ibid., page 22.

[36] Ibid., page 19: Those granted pardons or those whose convictions were overturned by the Court of Appeal.

[37] Ibid. at page 21.

[38] Ibid. at page 255.

[39] Ibid. at page 256.

[40] Chamberlain v the Queen (No. 2) (1984) 153 C.L.R. 521 (H.C.).

[41] Most recently, see “Witch Hunt” by Paul Toohey in The Australian (July 15, 2000): and “Scientist in Dingo Case at Heart of Ambush Inquiry,” by Patrick Barkham, in Sydney, published in The Guardian (UK) on February 25, 2002.The leading book on the case was written by John Bryson, an author and trial lawyer: Evil Angels (New York: Summit Books, 1985).

[42]Australia Royal Commission of Inquiry into Chamberlain Convictions in 1987 (Honorable T.R. Morling, Commissioner), at page 342, further considered by the courts in the light of the findings of this Royal Commission in: Reference under section 433A of the Criminal Code of the Attorney General for the Northern Territory of Australia of convictions of Alice Lynne Chamberlain and Michael Leigh Chamberlain, [1988] N.T.S.C. 64.

[43] Paul R. Wilson, “When Justice Fails: A Preliminary Examination of Serious Criminal Cases in Australia,” 24 Australian Journal of Social Issues 3 (1989), at page 12.

[44] Judy Bourke, Misapplied Science: Unreliability in Scientific Test Evidence, (1993) 10 Aust. Bar Rev. 123, quoted with approval in the Morin Inquiry at page 276 et seq. and page 327, and 342.

[45]Trace materials included seed particles, paint particles, human hair and cloth fibers.

[46] Paul R. Wilson, supra.; Morin Inquiry at page 284, although it is equally clear that “tunnel vision” also played a role: Morin Inquiry, at page 1137.

[47] Judy Bourke, supra.; Morin Inquiry, at page 287.

[48] Judy Bourke, supra. at pages 136-7; Paul R. Wilson, supra., at pages 11-12.

[49] Paul R. Wilson, supra. at page 8 et seq.

[50] Report of the Royal Commission to Inquire into the Circumstances of the Convictions of Arthur Allen Thomas for the Murders of David Harvey Crewe and Jeanette Lenore Crewe (Wellington, New Zealand: Government Printer, 1980), at pages 13-17.

[51] Dr. T. J. Sprott and Pat Booth, ABC of Injustice: The Thomas Case (Auckland: Arthur Thomas Retrial Committee, not dated, 39 pages); Trial by Ambush, by P.J. Booth, both of which are referred to in the Report of the Royal Commission, ibid., at page 16.

[52] Beyond Reasonable Doubt?, by David Yallop (London: Hodder and Stoughton, 1978). Parenthetically, Mr. Yallop subsequently testified for the defence during the trial of the Maguire Seven. Sir John May found, however, that Yallop had been effectively and successfully discredited in cross-examinations by Sir Michael Havers, then Attorney General of England and Wales. See the discussion of this point, Morin Inquiry, at pages 271-2.

[53] Royal Commission report, supra. at page 16.

[54] Ibid. at pages 96-98.

[55] Ibid. at page 120.

[56] Irish Republican Army: www.terrorismanswers.com/groups/ira.html at page 2; Lost Lives: www.rte.ie/news/archive/lostlives/adams.html

[57] The case of The Guildford Four was immortalized in the book In The Name Of The Father (Penguin Books: 1993) and in the movie In The Name Of The Father, released by Universal Pictures in 1993, starring Daniel Day-Lewis and Emma Thompson.

[58] Justice: Denied - - The Magazine for the Wrongly Convicted: www.justicedenied.org/inthenameofthefather.htm at page 2.

[59] Ibid. at page 4.

[60] BBC News: Blair Apologizes to Guildford Four, http://news.bbc.co.uk/1/hi/northern_ireland/778940.stm; also see:

http://innocent.org.uk/cases/guildford4/

[61] R v McIlkenny (1991), 93 Cr. App. R. 287 (C.A.).

[62] Ibid. at page 289.

[63] Ibid.

[64] Ibid.

[65] Ibid. at page 318. The case has been the subject of several books: for instance, see Bob Woffinden, Miscarriages of Justice (London: Hodder and Stoughton, Ltd. 1965); Paddy Joe Hill and Gerard Hunt, Forever Lost, Forever Gone (London: Bloomsbury Publishing Ltd., 1995).

[66] Miscarriages of Justice: The Birmingham Six, www.guardian.co.uk/crime/article/0,2763,634024,0.html That same day, March 14th, 1991, the Government of the United Kingdom established the Royal Commission on Criminal Justice, chaired by Viscount Runciman. Its mandate was to review the criminal justice process in England and Wales as a whole, including “the role of experts in criminal proceedings, their responsibilities to the court, prosecution and defence, and the relationship between the forensic science services and the police,” discussed in the Morin Inquiry, at page 276.

[67] McGuire Seven, http://innocent.org.uk/cases/mcguire7

[68] (1992), 94 Cr. App. R. 133.

[69] Ibid.

[70] Laboratorynews: http://www.sciences.demon.co.uk/aforensc.htm

[71] R v Ward, [1993] 2 All E.R. 577 (C.A.).

[72] Ibid.

[73] Ibid.

[74] Ibid.

[75] Ibid.

[76] Morin Inquiry, at page 268 (and see page 97).

[77] Payne v Tennessee, 501 U.S. 808 (1991), at page 868, quoting Oliver Wendell Holmes’ famous statement in a dissenting judgment in Northern Securities Co. v U.S., 193 U.S. 197 (1904), at pages 400-401.

[78] In the Morin Inquiry, at page 298, the Honourable Fred Kaufman quoted with approval the following extract from the Crown’s prosecution policy manual: “Because forensic scientists working in government-operated laboratories are more familiar with police and prosecution personnel and with prosecutorial approaches and concerns, there may be a tendency for them to feel ‘aligned’ with the Crown. In some jurisdictions this understandable relationship between the prosecution and forensic scientists has resulted in a perception on the part of the scientists that their function was to support the police theory. Such a perception is wrong and has the potential to contribute to a miscarriage of justice.” Generally, see the discussion of Fred Zain, infra.

[79] Ibid.

[80] In this respect, the debate in the United States is somewhat unique: see Michael L. Radelet et al, Death Penalty Symposium: Prisoner’s Released from Death Rows Since 1970 Because of Doubts About Their Guilt, 13 T. M. Cooley L. Rev. 907 (1996); Michael L. Radelet, “Wrongful Convictions of the Innocent,” 86 Judicature 67 (2002). It is clear, however, that the availability of the death penalty in the United States has had an impact on other countries in many ways: see, for instance U.S.A. vs Burns, (2001), 151 C.C.C. (3d) 97 (S.C.C.).

[81] Edwin M. Borchard, supra.

[82] Bedau and Radelet, supra.

[83] Jodi Wilgoren, the New York Times: Systemic Problems Compel Illinois Governor to Commute Remaining Death Sentences: http://www.tcask.org (January 11, 2003); Ryan’s speech can be found at: www.initiative-gegen-die-todesstrafe.de/George%20Ryan%20.htm.

[84] (1987), 40 Stanford Law Rev. 21.

[85] Those defendants convicted of homicide or rape and sentenced to death where no such crime had actually occurred, or the defendant was legally and physically uninvolved in the crime: Ibid. at page 45.

[86] Ibid. at pages 45-6.

[87] Ibid. at page 56 et seq.

[88] Ibid. at page 90.

[89] Radelet and Bedau, supra.; Keith A. Findley, supra.; Report of the Governor’s Commission on Capital Punishment submitted to Illinois Governor George H. Ryan in 2002, infra.; Barry Scheck, Peter Neufeld and Jim Dwyer, Actual Innocence: When Justice Goes Wrong and How to Make it Right, originally released as Actual Innocence: Five Days to Execution, and Other Dispatches From The Wrongfully Convicted (New York: Signet, 2001).

[90] On this occasion the authors published as “Radelet and Bedau” as opposed to “Bedau and Radelet.”

[91] Ibid. at page 919.

[92] Ibid. at page 917; more recently, see Karen F. Parker, Mari A. DeWees and Michael L. Radelet, “Race, the Death Penalty, and Wrongful Convictions,” 18 Criminal Justice 49 (2003).

[93] Keith A. Findley, supra., at “Part C”; David Horan, The Innocence Commission: An Independent Review Board For Wrongful Convictions, 20 N. Ill. U. L. Rev. 91 (2000); Michael J. Saks, Model Act: Model Prevention and Remedy of Erroneous Convictions Act, 33 Ariz. St. L. J., 665 (2001); James S. Liebman, “Rates of Reversible Error and the Risk of Wrongful Execution,” 86 Judicature 78 (2002).

[94] Barry Scheck et al, supra.

[95] The Constitution Project, Mandatory Justice: 18 Reforms to the Death Penalty, referred to by Keith A. Findley, supra., at footnote 91. [his text]; Gerald Kogan, “Errors of Justice and the Death Penalty,” 86 Judicature 111 (2002) [Mr. Kogan is a former prosecutor, defence counsel, trial judge, appellate judge and Chief Justice of the Florida Supreme Court].

[96] Frederick Drimmer, Until You Are Dead (New York: Pinnacle Books, 1990).

[97] Report of The Governor’s Commission on Capital Punishment, submitted to George H. Ryan, Governor of Illinois, the 15th of April, 2002 (State of Illinois, 2002). The Commissioner’s report draws heavily from the Morin and Sophonow Inquiries, especially concerning tunnel vision (page 20); jailhouse informants (pages 40 and 121); training (page 40); police culture (page 45); and recording statements (page 30).

[98] Ibid. at page i.

[99] Ibid. at pages v – vii. The Commission was composed of a retired Federal Judge as Chair, several serving or former prosecutors and public defenders, defence counsel, senior litigators from the private sector, a company president, a lawyer and author (Scott Turow) and, as Special Advisor, William Webster, a senior partner with a Washington law firm who was formerly an Appellate Judge, and Director of both the FBI and the CIA.

[100] Ibid. at page iii.

[101] Ibid. at page 191.

[102] Ibid. at page 105. A co-chair of the Commission has since published an article which emphasizes that implementation of the recommendations will provide significant safeguards against further wrongful convictions in both capital and non-capital cases: Thomas P. Sullivan, “Preventing Wrongful Convictions,” 86 Judicature 106 (2002).

[103] At the time, the media observed that Ryan himself was under criminal investigation and may be indicted in a corruption scandal: Jodi Wilgoren, supra.

[104] Jodi Wilgoren, ibid.; Death-Row Inmates Pardoned, Winnipeg Free Press, Saturday, January 11, 2003, at page A18.

[105] www.initiative-gegen-die-todesstrafe.de/George%20Ryan%20.htm, supra., at page 10 of 11.

[106] New America Library, December 2003.

[107] Ibid. p. xvii.

[108] Ibid. p. xx.

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