Netflix’s documentary series Making A Murderer shines a light on wrongful convictions in the US. Wrongful convictions, however, are not just an American issue, says Mark Gervin, interim director of UBC’s Innocence Project at the Allard School of Law. He and his students work with potential victims of Canada’s criminal justice system.

Unless you’ve spent the last three months on a deserted island far away from civilisation, you’ve probably heard about Making A Murderer, Netflix’s answer to This American Life’s Serial podcast.

Making A Murderer explores the story of Steven Avery, a Wisconsin resident serving 18 years in prison for a crime he didn’t commit. Shortly after his exoneration in 2003, Avery comes under suspicion for murder, and the last two-thirds of the documentary series revolve around uncovering flaws in the police investigation and the US legal system.

Steven Avery’s story is a tragedy, but he by no means is the first person to spend time behind bars for a crime he didn’t commit, says Mark Gervin, defence lawyer and interim director of UBC’s Innocence Project at the Allard School of Law, a Vancouver non-profit committed to aiding wrongly convicted people.

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Mark Gervin | interim director of UBC’s Innocence Project at the Allard School of Law

In 2015, the US set a record for the number of exonerations for wrongly convicted inmates: 149. And according to New York’s Innocence Project, more than 100,000 innocent people might be sitting in US jails right now.

5 High-Profile Cases of Wrongful Convictions in Canada

In recent decades, more than 20 Canadians have spent time in prison for major crimes they didn’t commit. Here are five of Canada’s most famous wrongfully convicted:

Guy Paul Morin (10 years in prison)
Ivan Henry (26 years in prison)
Donald Marshall Junior (11 years in prison)
David Milgaard (23 years in prison)
Romeo Phillion (31 years in prison)

Read more about notable overturned convictions in Canada.

Gervin also knows that wrongful convictions aren’t unique to the US. They can happen in Canada as well — and have happened in the past.

Currently he and 11 UBC law students are working on 25 cases of potential wrongful convictions — and they are close to submitting their first appeal application.

“Working on these cases takes a long time. Two of them, we’ve been working on for six years, but we’re getting really close on a couple of files,” he says.

I truly believe that we have people here at the Innocence Project that have been wrongfully convicted, and I also need to believe that we can fix that.
Mark Gervin

The long “dusty” road to overturning a conviction

Convincing Canada’s Court of Appeal to overturn a conviction requires a lot of patience and hard work, Gervin says. Often he and his students work long hours, seven days a week to make progress on cases they’ve taken on.

“It’s drudgery work,” Gervin says. “You have four, smelly, dusty, sometimes 20-year-old boxes full of files and we take them apart and start cataloguing everything before we can start working on it.”

Once the groundwork is done, students – under the supervision of a volunteer lawyer – interview former witnesses, talk to clients, develop alternative theories and submit appeal applications — depending on what is needed on a case-by-case basis.

From left to right: Garen Arnet-Zargarian, UBC Innocence Project volunteer | Lisa Sukkau, UBC Innocence Project student case worker | Alexandra Ballantyne, UBC Innocence Project assistant

“It’s a very unique opportunity for students to go so in-depth with an investigation and to see all the file from the time of the police investigation all the way to the appeal level,” says Alexandra Ballantyne, Mark Gervin’s assistant. “I would say most law students don’t get the chance to do that kind of hands-on work.”

For Lisa Sukkau, a second-year UBC law student, working for the Innocence Project has been an eye-opening experience.

Meeting the people we’re working with really gives you an idea of how life can change so quickly.Lisa Sukkau

“For some people it’s just wrong place, wrong time, and for others it’s having people turn against you,” she says. “There are all sorts of reasons why the system might think that you’re the one.”

Wrongful convictions are seldom the result of deliberately false accusations or malicious investigation. Far more often, tunnel vision — authorities convinced beyond doubt that a person is guilty — is to blame for innocent people ending up behind bars.

“If anyone along the way thinks that they know the answer, that person isn’t doing their job very well. Once the police, for example, decide you’re it, they don’t look at anything else anymore. And if that happens, that’s the guy who will go to jail innocent for sure.”

 

Most common causes for wrongful convictions
Tunnel vision is a significant problem under the umbrella of professional misconduct.

In the Morin Inquiry tunnel vision was defined as “…a single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one’s conduct in response to the information.” In some cases, police and prosecutors seek to find evidence that fits their theory as opposed to developing a theory on the basis of existing evidence.

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Eyewitness identification error is one of the primary contributors to wrongful convictions. In fact, according to the Innocence Project, it was a contributing cause in approximately 75% of convictions overturned through DNA testing

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A confession from an accused is often viewed as the Crown’s most powerful piece of evidence. The public – from which judges and juries come – have a difficult time accepting that someone would admit to a crime they did not commit. Despite this common sense belief, the Innocence Project statistics reveal that in 16% of cases where the individual was exonerated on the basis of DNA evidence, a full false confession was given by the innocent person.

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DNA analysis was first introduced to the criminal justice system in the 1980s, and has aided in the exoneration of many innocent people.

The results of forensic analysis techniques such as hair microscopy, bite mark comparisons, firearm tool mark analysis, shoe comparisons and blood typing that were accepted in criminal courts as reliable have come under serious scrutiny in recent years. Moreover, reliable forensic techniques are still subject to human interpretation and identification, so there is always the potential for error.

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Research has shown that race and gender play a significant role in wrongful convictions. The New York Innocence Project reports that more than 70% of those exonerated by DNA evidence were racialized persons.

In Canada, Aboriginal people are drastically overrepresented in the criminal justice system. As of February 2013, 23.2% of federal inmates were Aboriginal, yet Aboriginal people comprise only 4.3% of the Canadian population.

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Many Canadian law associations, unions and nonprofits have argued for the last decade that more than $113 million in funding cuts since 2002 have crippled the legal system. Court delays due to staff shortages, a lack of legal aid for people otherwise unable to afford legal representation, and overburdened defence attorneys, prosecutors and judges, makes Canada’s legal system more vulnerable to wrongful convictions.

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Source: The Association in Defence of the Wrongly Convicted (AIDWYK)

Public education about flaws in Canada’s justice system will drive reform

False DNA analysis, lying eyewitnesses, and suspects pressured into wrong confessions: for most people, that sounds more like something that happens in a crime novel, not in real life. When it comes to the law, most Canadians believe in an infallible system — it’s called the justice system, after all.

Sukkau thinks that one of the reasons why flaws in the legal system often escape the public’s attention is a lack of first-hand experience.

Mounting evidence shows that marginalized people, such as First Nations, the homeless, or people battling drug addiction, are by far the most frequent victims of wrongful convictions. For example, a recent investigation into Canadian prisons revealed that while admissions of white adults declined through the last decade, Indigenous incarceration rates were surging.

Ignorance is bliss, and for most people I’d say until it’s your brother or friend, it’s much easier to live in a world where only the guilty go to jail and everyone is treated the same. I get it. That’s the world I’d love to live in. It’s just not what’s really happening.Lisa Sukkau

Going through stacks of case files and seeing the systemic injustice some of the Innocence Project’s clients have experienced in cold print, has stripped away “some of the naivety” she had about police investigation and Canada’s legal system, says Ballantyne.

There was nothing surprising to me in Serial or Making A Murderer.Alexandra Ballantyne

“I think it’s very easy for people to think that wrongful convictions only happen in small towns in the US, but our files indicate otherwise. It happens in Canada, too.”

She and her colleagues hope that the public education the UBC Innocence Project, and similar projects around the world, provide will drive change in the long run. As more and more people learn about causes of wrongful convictions, and the devastating personal consequences, more people will hopefully be inclined to come alongside projects fighting for exonerations and reform.

A tough task: cherry-picking cases for lack of funding

One of the toughest tasks for Gervin is deciding which cases the Innocence Project pursues and which ones are tossed out or shelved for later. Sometimes that decision is based on a lack of new evidence that could help overturn a case, but often it simply comes down to a lack of funding — which makes it all the more painful.

“Let’s say I have three files where DNA is important. I have to make the decision which of these three people I’m spending money on, because there’s only so much to go around. Those are the choices we have to make and it’s a horrible choice.”

Seeing the disappointment on his students’ faces when he tells them “the bad news” breaks his heart on a regular basis, Gervin says.

“Forget about us though,” says Ballantyne, whose sympathy is with the people who reach out to the UBC Innocence Project, hopeful to finally clear their name and have their case reopened.

“There are about three or four files that we had to put into a pending folder this year, just because there’s a lack of capacity and resources,” she says.

How does it feel to go to someone who has been in jail for 20 years and say ‘sorry, we can’t help you’? That the thing I lose sleep over. It’s a terrible feeling.Alexandra Ballantyne


You can make a donation to the UBC Innocence Project here  (please leave a comment saying you’d like your donation to go to the Innocence Project).

Righting A Wrong: Innocence Project Fights for BC’s Wrongfully Convicted

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