Sunday, May 4, 2008

Part Four: Who is Edward Charles Splatt? More On The Guy Paul Morin Connection?

On January 23, 1995, Guy Paul Morin's appeal of his conviction for murder was allowed based on the DNA report, his conviction was set aside, and a directed verdict of acquittal was entered.

(The connection between Edward Charles Splatt and Guy Paul Morin - although continents apart - is explained in the previous post: Part Three: Who is Edward Charles Splatt? The Guy Paul Morin Connection; May 2, 2008);

Guy Paul Morin was free at last.

But as Jack King, wrote in "Champion: Magazine of the National Association of Criminal Defence Lawyers, "The real shock was yet to come."

"As appalled as Canadians were that an innocent man could be convicted of such a heinous crime after such ample proceedings...the Commission on Proceedings Involving Guy Paul Morin shook the entire Canadian justice system to its roots," this section of King's article, which appeared in August, 1998, under the heading, "The Ordeal of Guy Paul Morin: Canada Copes With Systemic Injustice," began.

"Public hearings were held from February 10 to December 18, 1997," the article by the Association's Public Affairs director, continued.

"During the hearings, which were covered extensively by the print and broadcast media, especially Kirk Makin, a reporter with The Globe and Mail (Toronto), a number of problems were identified.

But none, perhaps, were so important to the Canadian and U.S. criminal justice systems than the problems of prosecutorial subornation of perjury, from jail house informants particularly and forensic fraud by police experts.

"My approach at this inquiry was to receive such evidence primarily where it related to systemic issues, rather than findings of personal or institutional misconduct," Judge Fred Kaufman said.

Yet the components comprise the system, and that was where the case of Regina v. Guy Paul Morin failed, as when the simultaneous failure of a few parts causes a plane to crash.

The difference here was that, until the results of the DNA tests, prosecutors and the courts insisted that the plane had landed safely at last with Guy Paul Morin's conviction, and that all was well that ended well!

Bloggist's note: I am leaving aside Mr. King's comments on the jailhouse informant evidence as it is not directly relevant to this Blog. What follows are his observations on the Crown's forensic testimony, under the heading: "Whistleblower exposes crime lab fraud."

"The Crown's forensic testimony, especially the hair and fiber analysis supposedly linking the Morin family car and the body of Christine Jessop, was abysmally flawed," this section of the article begins.

"Aside from revelations of disclosure (discovery) abuse which abounded in the spring of 1997, it became ever more clear during the hearings that assertions that the necklace hair "matched" Guy Paul Morin's and that several fibers supposedly proving that Christine had been in the Honda, teetered on the edge of perjury, with further exaggeration by the Crown in closing argument," it continues.

"But an anonymous letter written by a whistleblower in the Ontario Centre of Forensic Sciences (CFS) toppled it over that edge the last weekend of April 1997, when it revealed that contamination in the hair and fibers unit of the CFS was a source of constant gossip in the lab as far back as 1985, when the Jessop and Morin samples were analyzed.

According to The Globe and Mail, Stephanie Nyznyk, a former CFS examiner who did the examinations in the Jessop investigation, told the commission in early April 1997 that she was under pressure from police and prosecutors to overstate her evidence.

She admitted during the inquiry that sets of similar fibers on Christine's remains and in the Morins' Honda did not necessarily mean Christine had been in the vehicle.

At first she denied that she told the jury in no uncertain terms that the fibers "matched," then she admitted under intense questioning several days later that she never told the jury -- or Crown prosecutors -- that her evidence was of little value because no one ever asked her that.

"As far as I can recall, I don't think that type of question came up," Nyznyk testified.

But under pressure from lawyers at the inquiry, Nyznyk admitted that she may have misled authorities -- who then unwittingly misled the court -- about the value of the hair and fiber samples.

Shortly after Nyznyk gave police her conclusions about hairs and fibers linking the Honda to Christine's body, Morin was arrested.

(Former Durham Regional Police detective Bernie Fitzpatrick agreed, months later in July 1997, that it was the hair "match" that led him to finally arrest Morin.

He testified that examiner Stephanie Nyznyk even let him look at the hairs under the microscope in early 1985 and explained to him that they "matched.")

Around April 15, 1997, a senior forensic scientist testified that he would have been "shocked, to say the least," to learn that prosecutors in the Morin case intended to rely heavily on hairs and fibers supposedly linking Morin to the crime.

The evidence was weak, at best, testified Norman Erickson, retired head of CFS's biology section. (Hair and fiber samples will typically have points of similarity, dissimilarity, or both. The more they share similar characteristics, the theory goes, the more likely they came from the same source. But it is highly misleading and patently unfair to testify that two such exhibits "match" as though they are identical.)

The bomb dropped two weeks later when Erickson, confronted with a letter from the anonymous CFS whistleblower sent to the commission a few days earlier, admitted he may have known as far back as 1985 that samples from the Honda and Christine's body were contaminated with foreign fibers within his lab.

At Morin's 1986 and 1992 trials, the prosecution relied heavily on several red wool fibers purporting to link the car and Christine's body.

Lab employees were already gossiping about the microscopic red "animal fibers" showing up on microscope slides and adhesive sample mountings tapes.

They speculated about two lab examiners known to wear red wool sweaters who refused to wear lab coats as far back as 1985.

When the Morin evidence was re-examined in preparation for retrial in 1990, the problem could have been common knowledge for at least five years.

The anonymous whistleblower revealed that Erickson telephoned Lynn Sedgewick, an analyst who worked closely on the Morin case several years ago, to ask whether she owned a red wool sweater, The Globe and Mail reported.

Such a call would mean that Erickson was far more concerned than he previously testified about the red fibers that contaminated the sticky evidence tapes.

Acknowledging that he phoned Sedgewick about her clothing, Erickson added that he visited another analyst involved in the Morin case at her new job to ask the same question.

Erickson said that both denied possessing a red sweater -- but James Lockyer, Morin's lawyer, revealed that he had asked Sedgewick the same question the previous Sunday after being informed of the letter, and she told him that she did own a red sweater.

Lockyer "expressed astonishment" that both Erickson and Stephanie Nyznyk managed to testify at both Morin trials while suppressing their knowledge of the contamination problem, The Globe and Mail reported.

"I don't know about suppressing it," Erickson responded. "I just didn't make it available."

"Interesting linguistics," Lockyer said. "So the two of you testified at the 1992 trial while knowing this?"

"It would appear so," Erickson admitted.

Contamination and Cover-Up Continued for Years;

As the hearings ground on, refueled by the allegations of fraud in Canada's premier crime lab, Bruce Durno, President of Ontario's Criminal Lawyers Association, told the press that the lab scandal shakes the system to the core.

"The inquiry has cast enormous light -- in some cases, new light -- on the workings of the Centre. In terms of defenses at trial, is this going to be a new avenue? Absolutely."

Durno said that the revelations of cover-up were "shocking on a number of levels."

"When you appear in court presenting evidence, it's a matter of trust. The Centre has been presenting evidence for years. Judges, juries and police have accepted it as gospel -- the Centre of Forensic Sciences has spoken."

In fact, the lab touted its reputation on the "fact" that it was supposedly neutral.

Its reputation was that it was devoted to science, favoring neither the Crown nor the defense, but seeking only neutral scientific proof, and its examiners often testified to that reputation in court.

But privately, and sometimes publicly, defense lawyers had dismissed the lab's supposed neutrality for years, complaining that in the vast majority of cases, they would never use it because it made the results of defense tests available to the prosecution, sometimes even before the defense received them.

And as the Morin Commission found, it would suppress exculpatory results of Crown evidence testing when it suited the prosecutors, and the defense would never know of it.

Although Shirley Stefak protested to her boss, Norman Erickson, that the Morin samples were "frighteningly" contaminated in 1990, the first anyone outside the lab heard of it was when she testified before the commission, May 8, 1997.

Cases May Be Reopened;

In mid-May 1997, James Crocker, a senior manager of the CFS, said that in the wake of the lab scandal revealed at the commission's hearings, a "long list of criminal cases" would be re-examined.

"It would be time-consuming, but I don't think it would be particularly difficult," he told The Globe and Mail May 12, 1997.

The cases that may have to be thrown out involve the work of Stephanie Nyznyk and Norman Erickson, he said.

Moreover, Crocker said he recalled that while sitting in the courtroom during Morin's 1992 retrial he thought how weak the fiber evidence seemed to him.

In that respect, he said, the problem was not with the quality of the microscopic fibers purported to link Morin and Christine Jessop, but what few points of similarity he noticed they shared.

No Closure;

Last January, as the hearings were winding to a close, Guy Paul Morin received a full apology from Ontario Attorney General Charles Harnick, and a $1.25 million (U.S. $822,500) settlement payable to him and his parents.

There was a feeling by some following the inquiry, Kaufman said, that Morin's defense counsel in the second trial "contributed to the miscarriage of justice primarily by the ill-advised, sometimes hostile, approach taken to witnesses and the undue prolongation of the trial, resulting in jury alienation."

Such sentiments are not uncommon, particularly when it seems there is guilt and blame enough to go around.

After all, how could a competent lawyer allow an innocent man to go to prison?

Don't the Crown prosecutors depend on defense lawyers to test their evidence?

Any such notions of ineffective assistance are dispelled by the commission report.

Let it be noted: Morin's defense lawyers won an acquittal at the first trial February 7, 1986.

Errors by the court, which seem trivial in retrospect, enabled the Crown to take its successful appeal in June 1987 (upheld by the Supreme Court of Canada in May 1990 and March 1991).

Morin's new trial team litigated pre-trial motions over seven months of hearings (and 7000 pages of transcripts) from April 2 to November 13, 1991.

The second trial, with over 120 Crown witnesses, lasted from November 13, 1991 to July 30, 1992.

"However well or ill-founded this criticism [of the defense lawyers] might be," Kaufman found, ". . . there is no doubt that a disquieting number of witnesses for the prosecution in this case gave evidence which could justifiably be regarded as suspect."

Fully convinced of Morin's guilt and blind to ample available evidence to the contrary, the Crown confidently built a dubious case on coached and perjured testimony from police, experts, and citizens; and it expended a great deal of resources to convict an innocent man.


When prosecutors and police violate citizens' rights under the delusion that it is for a greater good, when the state itself becomes a lawbreaker, or uses lawbreakers to achieve an aim, the words of Supreme Court Justice Louis Brandeis take on new life: "The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning, but without understanding."

In a rush to judgment, there is equal danger that men of ill-will may never be brought to justice.

"The criminal proceedings against [Morin] represent a tragedy not only for Mr. Morin and his family, but also for the community at large: the system failed him -- a system for which we, the community, must bear responsibility," Kaufman writes.

"An innocent man was arrested, stigmatized, imprisoned and convicted. The real killer has never been found. The trail grows colder with each passing year. For Christine Jessop's family there is no closure.""

Bloggist's Note;

I have a reason for returning to this ugly blot on Ontario's criminal justice system.

Guy Paul Morin was arrested on April 22, 1985.

Dr. Charles Smith been working on suspicious death cases at the Hospital for Sick Children since 1981;

The Canadian Forensic Centre and the Chief Coroner's office were both under the jurisdiction of the Ministry of the Solicitor General;

It appears to me that the failure to reign in Dr. Charles Smith must be seen in the context of the prevailing political, bureaucratic and scientific culture that allowed Guy Paul Morin to be charged and convicted.

What if that whistleblower hadn't made the call?

Harold Levy...;