Issue 184
February 15, 2002
- - - IN THIS
ISSUE - - -
Case Law Review
R. v. Baltrusaitis, Ontario Court of Appeal,
February 12, 2002
R. v. Anderson, Ontario Court of Appeal, February
12, 2002
Articles
Rimer, Sara,
In Dallas, Dismissal of Black Jurors Leads to Appeal by Death Row Inmate.
The New York Times, February 13, 2002
Herbert, Bob, The Fatal Flaws. New York Times, February 11, 2002
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CASE LAW REVIEW:
R. v. Baltrusaitis, Ontario Court
of Appeal, February 12, 2002
In this case, three successful grounds of appeal in relation to errors in the charge to the jury led to an order for a new trial on the charge of first-degree murder.
The appellant had been convicted for the murder of his brother, largely on the basis of circumstantial evidence. The only direct evidence linking the appellant to the offence came in the form of evidence from a jailhouse informant. The informant “John Doe” had a lengthy criminal record which included crimes of dishonesty and untrustworthiness. In his testimony, he admitted to an obstruct police conviction from providing police officers, who were looking for him, with the name of his good friend. Upon being placed in the same cell as the appellant, John Doe contacted the Crown, advised he had information and sought a deal on his own charges. This deal being refused, he was then contacted by police subsequent to his own plea of guilty. He provided a statement with supposed details of the offence (some of which were completely incorrect) and repeated an alleged confession made by the appellant to him. While Mr. Doe was serving his sentence, he was paid $100 by police to be transferred into the appellant’s cell for one night. During this one evening, the jailhouse informant testified, the appellant again confessed to the murder of his brother.
In the closing address, the Crown relied heavily on the “significant” evidence given by John Doe. The trial judge reviewed the criminal record of Mr. Doe with the jury, cautioned them that this record was a significant factor in their assessment of his credibility, and noted that the witness had a motive to favour the Crown in his evidence. However, he also stressed that some of the details the witness knew about the offence could only have come from the appellant. The trial judge did not give a Vetrovec warning to the jury.
This was found to be error given the extensive criminal record of the witness, the witness’ admission that he had put a good friend in legal jeopardy to advance his personal interests, the self-interest motivating all co-operation with authorities, the factual errors in relation to the offence which he attributed to having come from the appellant (i.e., that the deceased had been shot by two different guns, five times in total), and the fact that evidence given at trial was inconsistent with the first statement given to police.
The curative proviso was not appropriate in this case. Firstly, the circumstantial evidence outside the jailhouse informant’s testimony was not so overwhelming that the verdict would have necessarily been the same. There were a number of “loose ends” to the circumstantial case, including evidence of an alternate suspect and a missing murder weapon. Further, the trial judge should have cautioned the jury that the jailhouse informant could have come into his information from sources other than the appellant. In relation to the trial Crown’s contention that some information about the offence could have only come from the appellant, the Court relied upon the recommendation of the Honourable Mr. Justice Peter Cory’s recommendation in the Sophonow inquiry and pointed out that perfectly innocuous comments could be converted into an inculpatory statement by an unsavory cellmate. “By way of example, Doe testified that the appellant told him that he disposed of a gun before the police searched his camper. Manifestly, that statement, if made by the appellant, was highly incriminating. But what if the appellant said to Doe - ‘the police wrongly believe that I got rid of the murder weapon before they searched my camper?’ How easy it would be for Doe to twist that into the inculpatory statement attributed to the appellant.”
A second successful ground of appeal included the erroneous characterization of the appellant’s after-the-fact demeanour as indicative of consciousness of guilt, while failing to make mention of after-the-fact evidence indicative of innocence. The appellant had been quite calm in being advised by police that his brother had been murdered, and failed to ask questions as to the details of the offence. Justice Moldaver held that “the probative value of this type of evidence is highly suspect and easily misinterpreted…Rather than leaving the impugned items of evidence to the jury as evidence capable of supporting an inference of guilt, the trial judge should have told the jury to ignore them. With respect, his failure to so instruct the jury constituted error”. He also quoted the recent decision of the Court of Appeal in R. v. Levert (2001), 159 C.C.C. (3d) 71 at 81 where Justice Rosenberg linked use of such demeanour evidence to the wrongful conviction of Guy Paul Morin and the wrongful prosecution of Susan Nelles.
The final successful ground of appeal was yet another ‘was there substantial compliance with Lifchus’ argument. The trial judge’s definition of reasonable doubt was identical to the impugned charge in R. v. Thompson (2001), 52 O.R. (3d) 641 (C.A.), in that it coupled the “ordinary natural meaning” language with the failure to locate the standard above probability of guilt. The Court could not be certain that the jury had not used Doe’s evidence, along with the circumstantial evidence, in concluding the Crown’s case was proven to the requisite standard, the charge was not otherwise error-free, and the instruction implied that “probability of guilt or something close to it would suffice for a conviction”.
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R. v. Anderson, Ontario Court of Appeal, February 12, 2002
This brief judgment considers the effect, upon an accused’s constitutional guarantees, of the admission of the accused’s personal journals at his own trial.
The respondent had been charged with numerous Criminal Code offences and had been put through the trial process three times. Upon his arrest and pursuant to a search warrant, his personal journals had been seized by police from his home. (Compliance with s. 8 of the Charter was not placed at issue during the trial or upon appeal.) The contents of these journals were both inculpatory and exculpatory.
At the first and second trials, the Crown had not sought to tender these journals into evidence, taking the position that the journals were not essential to proof of the Crown’s case. The jury was dismissed in the first trial, for reasons not apparent from the record, and the second trial resulted in a mistrial.
At the commencement of the third trial, the Crown took the position that the journals were essential to proof of the case. Defence counsel’s response was to bring a successful Charter application, maintaining that admission of these journals would compel the accused to testify to provide explanations for some of the statements within. The trial judge held that the right to silence would indeed be compromised by introduction of the journals into evidence, but that the Crown could utilize them in cross-examination should the accused testify. The Crown called no evidence and the accused was acquitted. The Crown then appealed to the Court of Appeal.
Justice Cronk for an unanimous Court held the trial judge to be in error in characterizing the situation as a breach of the respondent’s ss. 7, 11(c) and 11(d) rights. She noted, firstly, that the statements in the journals were not coerced or elicited by authorities subsequent to the respondent’s detention on criminal charges, and thus jurisprudence such as Hebert and White was distinguishable from the case at bar. Secondly, she disagreed with the contention that the respondent would have been compelled to testify upon introduction of this evidence. This was more properly characterization as a tactical obligation to testify, felt by an accused, as response to his/her assessment of the strength of the Crown’s case.
The respondent advanced an unsuccessful abuse of process argument, on the basis that the Crown called no evidence in the third trial and reversed the position on the importance of the journals to the case. The Court noted that appellate courts should be careful not to second-guess the Crown in exercising the discretion not to call evidence, and found the change in position to be due to a re-assessment of the case at the start of the third trial. This was not one of the “clearest of cases” where a stay was warranted because there was “no ‘conspicuous’ or ‘overwhelming’ evidence in this case of improper motive or bad faith by the Crown, or ‘of an act so wrong that it violates the conscience of the community, contemplated in Power, sufficient to establish an abuse of process warranting intervention by this (appellate) court.”
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By Sara Rimer
Carol Boggess says she was “eager and willing to serve” on the jury in the 1986 capital murder trial of Thomas Miller-El in Dallas. When questioned by prosecutors, Ms. Boggess, an occupational therapist, said she strongly supported capital punishment and “had no doubt at all” that she could sentence a person to death.
Wayman Kennedy, a Sunday school teacher and church deacon, also wanted to be on the jury and told prosecutors he felt confident of his ability to impose a death penalty. So did Billy Jean Fields, a postal worker.
Mr. Miller-El is black. He was charged with shooting two white hotel clerks, one of the fatally, during a robbery in November 1985.
Ms. Fields, Mr. Kennedy and Ms. Boggess are also black. All were excluded from the jury panel by Dallas County prosecutors, as were seven of eight other blacks interviewed as prospective jurors.
The jury the prosecutors accepted was composed of nine whites, one Filipino, one Hispanic and one black man who told prosecutors that he thought that execution was too easy, and that the appropriate punishment for murderers was to “pour some honey on them and stake them out over an ant bed.”
Mr. Miller-El, 50, is scheduled to be executed by the state of Texas on Feb. 21, but his lawyers say the jury that convicted him was selected according to longstanding racially discriminatory standards of the Dallas County district attorney’s office.
His lawyers have asked the Texas Board of Pardons and Paroles to commute Mr. Miller-El’s sentence and have appealed his case to the United States Supreme Court. The court decides this week whether to take the case. Mr. Miller-El’s lawyers say his case highlights the continuing exclusion of minorities from juries across the country.
“What’s at stake in this case is the fundamental right of citizens of all races to participate in the justice system,” said his lawyer, Jim Marcus, the executive director of the Texas Defender Service.
The Dallas County district attorney’s office has contested the plea for clemency and opposes review by the Supreme Court. “There’s no evidence showing that there was any racial discrimination,” said Lori Ordiway, chief of the appellate division of the district attorney’s office. Ms. Ordiway said the blacks had been struck for “race-neutral reasons.”
The federal Constitution has long prohibited race discrimination in the selection of juries, but until 1986 the standard that a defendant had to meet to prove such discrimination was extremely high, requiring that a pattern of discrimination be proved.
The Supreme Court recognized this when it lowered the standard, in its landmark 1986 ruling in Batson v. Kentucky. Before Batson, neither the prosecution nor the defense had to provide reasons for its use of peremptory strikes in excluding prospective jurors.
Batson held that if the defense was able to show that it appeared the prosecution was using its strikes to exclude minorities, the trial judge would require the prosecutor to explain the peremptory strikes. Moreover, the reasons could not be based on race. The Batson ruling is relied upon by defense lawyers across the country during jury selection.
Mr. Miller-El was convicted and sentenced one month before the Batson ruling came down. Because his case was still on appeal when Batson was decided, however, the decision applied to his case retroactively. Even so, state and federal courts have upheld Mr. Miller-El’s death sentence, finding that no intentional racial discrimination occurred during jury selection.
Mr. Miller-El’s lawyers contend that the appeals courts have failed to apply the Batson ruling correctly. They argue that the courts looked only at the number of prosecutorial strikes – 10 of 11 black prospective jurors – and accepted the explanations given by the prosecution as nonracial. And they say the courts failed to consider historical evidence that Dallas County prosecutors had systematically excluded blacks from juries for years.
“The case is important not as an historic artifact, but as an ongoing problem that demands the court’s attention,” said Elisabeth Semel, director of the death penalty clinic at the Hastings School of Law at the University of California at Berkeley, and one of the lawyers who wrote an amicus brief in support of Mr. Miller-El’s Supreme Court petition.
Mr. Miller-El’s clemency petition contains testimony from four former prosecutors whose time in the Dallas County office collectively covered the period from 1977 to 1989. The four said the office had an unofficial policy to exclude blacks from juries.
One of the four, Larry Baraka, who was a prosecutor in the late 1970’s and who became a trial judge in 1981, said: “The policy in a nutshell was to try to get all-white jury of old white men.” Mr. Baraka is black.
Statements from several black prospective jurors who were struck from the Miller-El trial are included in the clemency petition, along with a 1986 article in The Dallas Morning News citing a 1963 internal memo in the district attorney’s office advising prosecutors who were picking juries: “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.”
That language was later dropped, but in the early 1970’s the office used a training manual that included a memo from a Dallas County prosecutor, Jon Sparling, containing advice on jury selection: “You are not looking for any member of a minority group which may subject him to oppression – they almost always empathize with the accused.”
Mr. Sparling, 60, has since retired. “It’s not something I’d want the world to see,” Mr. Sparling said in an interview, referring to his memo, which he said he was asked to write informally for other prosecutors. “I wrote it very quickly. I wasn’t careful with my words. I’m not making any excuses for it.”
“Everything has changed since then,” he added.
The training manual was in use at least until 1980, Mr. Marcus said, and the practices it recommended was routinely followed by prosecutors when Mr. Miller-El was tried.
Ms. Ordiway of the district attorney’s office said she was neither authorized nor qualified “to talk about what happened in the 1960’s,” but she said that there was no racial discrimination in jury selection in the 1980’s, or since.
In 1986, The Dallas Morning News examined the 15 Dallas County capital murder trials from 1980 through 1986, including that of Mr. Miller-El, and found that prosecutors excluded 90 percent of blacks who qualified for jury selection. The newspaper concluded that in capital murder cases during that period “prosecutors got what they wanted: the death penalty, and overwhelmingly white juries.”
Paul Macaluso, the assistant district attorney who picked the jury in Mr. Miller-El’s case, said he had struck the 10 black jurors for reasons that had nothing to do with race. He said that he was trying to assemble the best possible jury and that some of them seemed to waffle on imposing the death penalty. His former office had not had a policy of racial discrimination in the selection of jurors, he said.
“Things don’t operate that way,” said Mr. Macaluso, 59, who is now a federal prosecutor in Dallas. “I wouldn’t put up with it.”
Mr. Macaluso was one of two prosecutors who selected the jury in the 1985 trial of Ronald Curtis Chambers, a black whose murder victim was white, and who was sentenced to death. In 1989, the Texas Court of Criminal Appeals reversed Mr. Chambers’ conviction after finding that the state had engaged in racial discrimination in its use of peremptory challenges.
Mr. Macaluso said that the appellate court had been wrong in the Chambers case and that he had never engaged in racial discrimination in selecting jurors.
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The following
article appeared in The New York Times, dated February 11, 2002.
By Bob Herbert
In the spring of 2000 a team of lawyers and criminologists at Columbia University released the first phase of the most far-reaching study of the death penalty in the United States. It showed that the system of capital punishment was riddled with unfairness and incompetence, with serious errors erupting with alarming frequency at every stage of the process.
The study showed that of every three capital sentences reviewed, two were overturned on appeal. Those were cases in which at least some of the mistakes were caught. No one knows what percentage of the remaining cases were tainted.
Today the team is releasing a massive second phase of the study, which focuses on why there are so many mistakes in death penalty cases, and what can be done about them.
The study describes the capital punishment system as “broken.” When I asked the leader of the study team, law professor James S. Liebman, if he thought any innocent people had been executed, he said, “Our judgment is that there is a very high risk that that has happened.”
Problems with the administration of the death penalty have widespread consequences that are not limited to the danger of executing the innocent. The study said the errors that permeate the system also leave killers at large, exacerbate suffering, waste tax dollars and deprive citizens of the high quality of justice that they expect and deserve.
The biggest problem appears to be the rush to impose the death penalty. The study recommends that if the death penalty is to be retained, it should only be used for the “worst of the worst” cases – those particularly heinous crimes in which there is no doubt that the defendant is guilty and there are no mitigating circumstances.
The study found that “the more often officials use the death penalty, the wider the range of crimes to which it is applied, and the more it is imposed for offenses that are not highly aggravated, the greater the risk that capital convictions and sentences will be seriously flawed.”
“Most disturbing of all,” the authors wrote, “we find that the conditions evidently pressuring counties and states to overuse the death penalty and thus increase the risk of unreliability and error include race, politics and poorly performing law enforcement systems.”
The study shows for the first time that three-fourths of the reversals at the two appeal stages where data was available “were because defense lawyers had been egregiously incompetent, police and prosecutors had suppressed exculpatory evidence or committed other professional misconduct, jurors had been misinformed about the law, or judges and jurors had been biased.”
The study found that:
These are not easy problems to remedy. The study offers several “policy options” that might help states limit the application of the death penalty to the most egregious cases. They included requiring proof beyond any doubt in capital cases; barring the death penalty for juveniles and others with inherently extenuating conditions, such as mental retardation or serious mental illness; making life imprisonment without parole an alternative to the death penalty, and clearly informing juries of the option; making all police and prosecution evidence that bears on guilt vs. innocence, and on aggravation vs. mitigation, available to the jury; and insulating judges in capital cases from political pressure.
The authors found that the system of capital punishment is “collapsing” under the collective weight of the tremendous volume of errors. That being the case, they said: “The time is ripe to fix the death penalty. Or, if it can’t be fixed, to end it.”
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