GIST: "That is how Brock Martland and law students at the University of B.C.’s Innocence Project described the compelling case that put Duray Bentley Richards in jail for life for the brutal December 1992 murder of Carrie Louise Marshall in Creston, B.C. A submission filed to the federal justice minister by Martland and the students may be the inmate’s last chance of being cleared of a murder he maintains he did not commit. Richards, a man who police feared had killed before, was convicted in “a classic case of tunnel vision on the part of the police and the prosecution” that relied on pseudo-science, hypnotized witnesses, faulty DNA evidence and a jailhouse informant, according to their 267-page submission. An inquiry into the wrongful conviction of Canadian Guy Paul Morin defined tunnel vision as a “single-minded and overly narrow focus on an investigative theory.” It is the “antithesis of the proper roles of the police and Crown Attorney” and the leading cause of wrongful convictions in Canada, according to a report by the federal, provincial and territorial working group on the prevention of miscarriages of justice. B.C.’s Ministry of the Attorney General and B.C. RCMP declined to comment on the Richards case as the matter is under ministerial review. The circumstantial evidence that formed the case was almost entirely flawed, according to the submission. But Richards’ then defence, funded under the legal aid plan, could not beat it. Richards lost his murder trial, then two bids to appeal the decision in higher courts. Witness testimony had matched tire tracks outside the shack from which Marshall went missing with the tread on the tires of Richards’ 1976 Ford Elite Torino. But that witness was a local Big O Tire employee who put the tires on Richards’ car. He was also Richards’ roommate, and he had been hypnotized before he testified, the submission noted. A comparison of tread patterns is not enough to match a print to a tire, according to a 2009 U.S. National Research Council report (PDF) that also points to the importance of education and training for those engaged in forensic science. Years after trial, a UBC student discovered the distance between the tire marks outside the shack measured 1.9 metres, but the distance between the centrelines of the Torino’s tires measured only 1.6 metres. It is a significant difference. In all, hypnosis was used on three witnesses who testified during Richards’ trial, according to the submission. A 2007 Supreme Court of Canada decision found “the technique of hypnosis and its impact on human memory are not understood well enough for post‑hypnosis testimony to be sufficiently reliable in a court of law.” It can distort memory or create hallucinated or false memories, according to the ruling. Jurors were told DNA testing “matched” drops of blood in Richards’ Ford to the victim. But the so-called PCR DQ Alpha testing that came to that conclusion was rudimentary and only had a discriminating power of 83 to 94 per cent, as compared to 100 per cent in modern testing methods, according to the submission. Such testing has only been used once to support a conviction in Canada, and that was in the Richards case, according to search results from the Canadian Legal Information Institute. A friend of Richards testified that on the day Marshall went missing he had given her a sweater. But Marshall had been seen wearing the sweater the day before she went missing. The submission argues that the friend had given several different accounts of how Marshall received the sweater. Court proceedings also included some fabricated theatre that prejudiced Richards in front of jurors, according to the submission. The Crown claimed the “likely instrument of death” was a single-arm tire iron, court documents show, and forensic pathologist William Currie testified to that effect. But while no such tire iron was ever recovered, Currie bought one, brought it to trial and then demonstrated to jurors how it could be used to kill. “The tire-iron theory was just that, a theory. Nonetheless, the graphic image of mutilation … with a sharp tire iron was disturbing in the extreme. It resonated for the jury,” according to the submission. “It should never have been tolerated.” Then there was a purported confession. A jailhouse informant testified that Richards had told him Marshall had been his girlfriend and that he “had taken her into the bush, had sex with her on the hood of his car, then hit her and left her on the side of the road to walk home,” according to a B.C. Court of Appeal decision in the case. The details did not match the Crown’s case against Richards.  An inquiry into the wrongful conviction of Canadian Thomas Sophonow called jailhouse informants “the most deceitful and deceptive group of witnesses known to frequent the courts. … Usually, their presence as witnesses signals the end of any hope of providing a fair trial.” It recommended as a general rule they be prohibited from testifying. Martland’s submission called into question dozens of other threads of evidence and testimony with which the conviction was stitched together. Among the most intriguing evidence gathered during the investigation was 183 human hairs — including pubic hair — that was found on Marshall’s body, but that a police laboratory determined did not belong to Richards, according to the submission. Those hairs were not tested further. “Having concluded that the hair evidence could not be placed on the scales and used against Richards, it became irrelevant. In fact, that evidence became risky, for it could support an inconvenient truth: that someone else killed Marshall,” according to the submission. Police records suggest those hairs can no longer be tested. All exhibits relating to Richards’ file, along with unrelated exhibits, were burned in a sawmill by police in February 2003, as part of routine destruction procedures, according to an internal RCMP email written by Sgt. Randy Koch of the Creston detachment. The exhibits had been found less than a year earlier, after Richards filed an access-to-information request to support an appeal. “I was surprised they were still available and equally surprised the exhibits needed to be sent to Ottawa,” Koch wrote, shorty after they returned to B.C. and after he authorized their destruction. “The prejudice to Richards now is grave and irreparable,” the submission remarked. “We challenge the fairness and the propriety of what the police did by destroying this evidence. They have — deliberately, if not maliciously — frustrated the review process and put the applicant in the position where he is significantly weakened in his ability to clear his name.” Richards’ prison lawyer Rachel Barsky put several questions to Richards on behalf of Postmedia and claimed to have faithfully recorded his answers. Richards said in the 25 years he has spent in prison, he has missed his kids growing up and the deaths of his father and grandparents. His mother is now suffering from Alzheimer’s disease, and he was absent for the births of his grandchildren. “It has also been a terrible crippling life event to think that Carrie Marshall’s family has solemnly believed that I have killed their daughter,” Richards said. He asked if there was anything he could do to help the federal justice minister expedite her review. Martland’s submission, which could put Richards’ case back in court, has been with the minister for more than two years."

The entire story can be read at the link below:

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: Please send any comments or information on other cases and issues of interest to the readers of this blog to:

Harold Levy:  Publisher; The Charles Smith Blog;