Robert Raymond Cook Facing Execution

In my last trio of posts I have been discussing The Work of Justice by J. Pecover which deals with the conviction of Robert Raymond Cook for murder in Alberta. I have outlined the case, discussed the evidence and assessed the question of whether there was a wrongful conviction. In this post I will be discussing my reaction to the book and Cook’s execution.

The book is not structured how I want to read the story of a real life criminal case. There is a forward and an introduction that I avoided reading as I could tell they had more information than I want before reading the complete book. The opening two chapters then summarized the events. The rest of the book fleshed out what happened and provided analysis. I would have preferred a narrative that was chronological either ending with the trial and appeals or going through the trial and providing back story as the evidence of witnesses was recounted.

The section of the book I found best written and most moving dealt with the appeals, the review with regard to commutation and the execution.

Despite the issues noted I was glad I read the book. I appreciated the scrupulous effort of Pecover to get the facts right and probe the evidence and the actions of the lawyers. The book also caused me to reflect on capital punishment, especially in Canada. It has been 55 years since there was an execution in Canada.

While the book did not convince me there had been a miscarriage of justice in convicting Cook I do not believe he should have been executed. I acknowledge I am biased in this area as I oppose the death penalty. At the time of Cook’s conviction in 1960 I would have been considered an abolitionist seeking the end of capital punishment.

There were numerous legal issues with regard to the conduct of Cook’s first trial. It appeared to me that the Alberta Court of Appeal chose but one of the grounds (the trial judge refused the defence’s application to recall a witness) available for overturning the conviction when they ordered a new trial.

If anything there were more issues with the second trial. It was unbelievable that the trial judge summed up the facts and law in a charge of half an hour to the jury. It was impossible for the judge to properly set out the law and the defences. He spent but a minute on the alibi defence.

Unfortunately the Court of Appeal was not willing to see a third trial take place. While criticizing the trial judge, especially with regard to his charge on the defence of alibi, they found the charges as a whole adequate and resorted to the section of the Criminal Code that allows a conviction to stand on appeal notwithstanding errors because “there was no substantial wrong or miscarriage of justice”. By invoking that clause they believed he was guilty.

Early in my career as a lawyer I argued an appeal in which the Saskatchewan Court of Appeal used the same clause to dismiss an appeal. It stung then and stings now. I consider that clause one of the worst sections in our Criminal Code.

The Supreme Court of Canada dismissed the appeal without even giving reasons.

At that point Cook sought a commutation.

It was remarkable reading the book how many people in the provincial and federal correctional services found it difficult to believe Cook could have committed mass murder and supported commutation.

Through the book Cook’s personality is of a likeable non-violent boy and man. What could have motivated him to commit mass murder is unknown. Pyschiatric examination did not indicate mental health issues. All I can say is that I have known people to do terrible things to family members because of emotional family issues that overwhelmed them.

Pecover also sets out how many in Alberta, despite the the murder of the family, did not want execution.

The civil servants who reviewed the case recommended a commutation.

Though he had little formal education Cook wrote an eloquent letter in support of his commutation. In his letter (his spelling) he said:

My appeal Sir is not one of mercy for a crime but for time wich will reveal beyond doubt innocence. I respectfully put it Sir, that when the facts replace the unaswerd questions and inference the err of this confiction will be proved.

It was a powerful misspelling that sets out the heart of his position when he wrote “confiction” instead of “conviction”.

The federal Cabinet made commutation decisions. The Prime Minister of the time, John Diefenbaker, was from Saskatchewan. A former defence counsel he was an avowed abolitionist. (In my review of Diefenbaker for the Defence by Garrett Wilson I set out a case where he had recommended a client pursue an acquittal rather than seek a conviction for manslaughter. His client was convicted of murder and hung.)

Prior to Cook’s application the Cabinet, essentially Diefenbaker, had commuted 26 of 32 convictions for capital murder but there was no commutation for Cook.

Cook had the misfortune of making his application shortly after a murderer from Calgary who had raped and killed a 10 year old in a church had his sentence commuted because he was clearly insane. There was intense public anger over the commutation. Despite protestations to the contrary it is hard not to think the earlier commutation had an impact on Cook’s application.

The substantial number of commutations for capital murder convictions by the Federal Cabinet of that time does illustrate the arbitrariness of the death penalty. Men and women found guilty of capital murder were hung or spared by politicians deciding whether to extend or withhold mercy.

Cook went to his death with dignity and courage. There is a moving statement by one of the two Lutheran pastors who spent the final four hours before the midnight hanging with Cook .

At the execution, moments before the hood was placed over his head, he said “Father, forgive them”. Cook was reciting the Lord’s Prayer with the pastors when the trap was sprung.

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Pecover, J. - (2017) - The Work of Justice - The Trials of Robert Raymond Cook and Assessing the Evidence and Considering the Judgment from Causes of Wrongful Conviction 

Considering Causes of Wrongful Conviction and Robert Raymond Cook

In two previous posts I have been discussing The Work of Justice by J. Pecover concerning the conviction and execution of Robert Raymond Cook for murdering his family in 1959 in Alberta. Pecover believes there was a miscarriage of justice. In this post I will examine the conviction from another perspective.

In Canada and the U.S. there have been a signficant number of cases of wrongful conviction in the past couple of decades. In Canada several cases of wrongful conviction for murder have brought about public inquiries. Innocence Canada (formerly the Association in Defence of the Wrongly Convicted or AIDWYC) is dedicated to the cause of the wrongfully convicted.

At its website they list the leading causes of wrongful convictions:

            1.) Eyewitness identification error;

            2.) Jailhouse informant testimony;

            3.) False confessions;

            4.) Tunnel vision;

            5.) Systemic discrimination;

            6.) Evolution of and errors in forensic science; and,

            7.) Professional misconduct.

To provide a different examination on Cook’s conviction I have analyzed the case by considering these causes:

1.) Eyewitness identification error – There was no eyewitness identification of Cook as the killer. The evidence of the Crown was circumstantial. At the same time the jury  considered Cook’s evidence asserting innocence and that he had an alibi. They also had the evidence of Albert Wilson supporting the alibi though his testimony was crushed on cross examination;

2.) Jailhouse informant testimony – There was no jailhouse informant. The Crown did not plant a police officer with Cook. No fellow prisoner claimed Cook had confessed to the murders;

           

3.) False confessions – In some cases of wrongful conviction the accused has been aggressively questioned by the police and eventually confesses to a crime he/she has not committed. Cook never confessed. In the hours before his execution he insisted he was innocent;

           

       4.) Tunnel vision – At Innocence Canada tunnel vision is   
       defined as:

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.

  

In Cook’s case the Crown completely focused on Cook. The problem for Cook’s defence is that there was never a credible alternative suspect.

Innocence Canada provided an example of tunnel vision:

Tunnel vision played a significant role in Thomas Sophonow’s wrongful conviction. In that case the police were in contact with the actual killer, however, they were so focused on Sophonow that they lost sight of any potential alternative suspects.

Cook’s defence counsel spoke of a mysterious stranger who could have been a prison mate of Cook released at the same time but the only possibility was a man who was in Edmonton at the time of the murders but there was no evidence he was ever in Stettler or had reason to kill 2 adults and 5 children.

            5.) Systemic discrimination – Innocence Canada states:

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. As a point of comparison, over 70% of the American population are of Caucasian descent. It is clear that racial minorities are at a higher risk of being wrongly convicted.

Since Cook was white and male the issues of race and gender considered for discrimination would not have a role.

While he did not come from a wealthy background his family was an average working family.

6.) Evolution of and errors in forensic science – In Cook’s case little forensic evidence really aided the Crown or the defence. There was no further identification of the blood stains on his suit beyond they were blood stains.

What was of some significance is that they did not find any trace of blood upon him including under his fingernails. Whoever committed the murders had moved bloody bodies and sought to clean the house.

There were some unidentified fingerprints in the house.

What was not available in 1960 was DNA evidence. DNA analysis has often been at the core of proving wrongful conviction. Had there been DNA evidence of a mysterious stranger it could have helped Cook but if there was no DNA of a mysterious stranger the Crown case would have strengthened.

7.) Professional misconduct – Cook was tried in an era when there was no mandatory disclosure of the Crown case. Still in his case the Crown provided its evidence. Some of that evidence was contradictory. Parts of the investigation appear to have been poorly done but there was not a plan to keep evidence from Cook.

The Innocence Project provided examples of withholding evidence in a pair of wrongful convictions:

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. As a point of comparison, over 70% of the American population are of Caucasian descent. It is clear that racial minorities are at a higher risk of being wrongly convicted.

Pecover points to examples of what he considered the prosecutor acting improperly in the trials but I did not see professional misconduct.

The importance of the above factors was highlighted in an article Judging Innocence by Brandon Garrett in the Columbia Law Review in 2008. He analyzed the first 200 American cases where DNA evidence proved wrongful convictions.

He examined the evidence which had produced the convictions:

A few predictable types of unreliable or false evidence supported these convictions. The vast majority of the exonerees (79%) were convicted based on eyewitness testimony; we now know that all of these eyewitnesses were incorrect. Fifty-seven percent were convicted based on forensic evidence, chiefly serological analysis and microscopic hair comparison.18 Eighteen percent were convicted based on informant testimony and 16% of exonerees falsely confessed.

For careful readers the percentages do total more than 100%. Most wrongfully convicted, as in most trials, had more than one form of evidence led agains them.

In considering the 7 primary causes of wrongful conviction with regard to the Cook case I do not see them showing a wrongful conviction of Cook.

My fourth post will add some thoughts on the book and discuss the end for Cook.

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Pecover, J. - (2017) - The Work of Justice - The Trials of Robert Raymond Cook and Assessing the Evidence 

Assessing the Trial Evidence Against Robert Raymond Cook

Robert Raymond Cook

In my last post on The Work of Justice - The Trials of Robert Raymond Cook by J. Pecover I outlined the circumstances of the brutal slaying of Robert Raymond Cook’s family for which he was convicted and hung in 1960.

Pecover provides a great amount of detail on the evidence at Cook's the trials with one huge gap in his review and analysis. From the start Pecover is clear that he thinks Cook should not have been convicted on the evidence presented at his two trials for capital murder.

Pecover gets so caught up in detail at times. He goes over small issues with contradictions such as why Cook was stopped by the police during the day prior to the murders. He spends pages dealing with the missing Friday newspaper and speculation it was used to help cover the bodies.

There were areas where the defence could realistically raise questions. While not well done the defence did raise the issues.

It was never established whether the shotgun used in the killings was owned by Cook’s father or was brought to the house the night of the killings.

That there were 15 unfired shotgun shells in the suit, bedroom and garage is unusual as Cook’s father was not actually hunting.

As well there was a blood stained white shirt that no direct evidence could explain how it ended up in the family home.

While the suit was blood stained in the crotch and legs there were no blood stains on Cook’s shorts or his socks.

The gap in Pecover’s book concerned the the details of the commission of the murders. Not surprisingly Pecover does not want to dwell on the gruesome particulars. The parents, in bed, were killed by shotgun blasts fired at close range and the children, from 3 to 9 years of age, were beaten to death by the shotgun. No defence counsel or advocate for an accused will want to explore those details but they cannot be ignored and how the killings were done may support the prosecution or the accused. He spends not even two paragraphs on how the murders were committed. It was a major weakness in the book not to analyze the evidence of the killings in the same detail as the other evidence.

I wondered from the opening pages what alternative killer the defence would present to the jury. I knew the defence could not succeed without either an alternative or an alibi. Cook had been at the house the night of the murders and the next day he possessed his father’s identification and the family car. Those facts effectively prevented a successful defence limited to questioning the sufficiency of the Crown case.

At both of his trials his defence counsel sought to advance the theory of a mysterious stranger entering the house Thursday night after Cook had left the house and brutally killing his family. The defence of the mysterious stranger is among the most difficult in criminal defence. Who might this stranger be? Cook had no credible suspect.

Cook did present an alibi defence but it arose in questionable circumstances being only being raised by Cook to his counsel shortly before the first trial.

Cook had asserted that at the time of the murders he was in Edmonton committing the break and enter of a dry cleaning business with another professional criminal, Albert Victor Wilson.

While there was no proof of communication between them they were inmates at the same time in the Fort Saskatchewan jail prior to Cook's the first trial.

Any chance of success for the alibi was shattered in a Hollywood moment of cross-examination. In his evidence Wilson stated that he had searched a toolbox in the station wagon Cook was driving for a screwdriver so they could pry open a grate to gain access to the dry cleaning business. On cross examination the Crown Prosecutor, Wallace Anderson, had Wilson go from the witness box to the evidence table and open the toolbox and pull out what Pecover describes as “a torrent of screwdrivers”.

What was shocking to me as a defence counsel is that Cook’s counsel had insisted the toolbox be an exhibit. He had clearly never looked inside the toolbox. How could a defence lawyer not check the contents of the toolbox?

Pecover identifies other flaws in the work of defence counsel. I expect he is correct but beyond the startling gaffe with the toolbox I do not think they played a significant role in the trials.

I thought Pecover underplayed the significance of the jury seeing the witnesses. It is stated repeatedly and correctly by appellate courts that it is as important to see how the witnesses give their evidence as what they say in court. Cook and Wilson were not credible.

With no identifiable alternative killer and the alibi defence in tatters and Cook acknowledging he had lied to police in parts of his statements Cook was doomed to conviction. 

In my next post I will assess the reliability of the conviction.

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The Work of Justice - The Trials of Robert Raymond Cook by J. Pecover

The Work of Justice – The Trials of Robert Raymond Cook by J. Pecover

(41. – 928.) The Work of Justice – The Trials of Robert Raymond Cook by J. Pecover – Cook was the last person hanged in Alberta when he went to the gallows on November 14, 1960. He was 23 years old.

At the heart of the book was a horrific crime. Cook’s father, stepmother and 5 half siblings were murdered in their home in Stettler and dumped into a grease pit in the garage attached to the house.

To try to understand Cook Pecover delves into his personal and criminal history. Growing up in the small towns of Hanna and Stettler in Alberta Cook started stealing cars when he was 12. I was startled. Growing up on a farm in Saskatchewan a generation later I cannot recall knowing or hearing about anyone in my area becoming a thief before becoming a teenager.

It was not clear why Cook chose the criminal life. His primary life skill was hot wiring cars but he could have been a mechanic like his Dad. He was undoubtedly affected by family circumstances. His natural mother died when he was 9 and his father remarried about 3 years later and moved to Stettler. Almost immediately Cook began stealing cars.

He was a professional thief before he was 15. Of the last 3,247 days of his life he was out of jail but 243 days.

Two days after his final release in June of 1959 he arrived in Stettler on a Thursday. That evening he met with his father. They went home together.

That night, probably around midnight, the family was slaughtered.

The next morning Cook is in Edmonton, over a 150 km away, trading off the year old family station wagon on an Impala, a flashy “brand-new white convertible, top down, red Naugahyde upholstery”. He uses his father’s driver’s licence to make the deal.

Cook spent Friday and much of Saturday cruising around rural Alberta with a trio of teenagers. Eventually he returns to Stettler on Saturday and spends about an hour at the family home. He is detained on Saturday evening by the police with regard to questions concerning the new car.

After the bodies are found on Sunday he is charged with murder.

Cook provides an explanation to the RCMP that he repeats at his trials. He says that while speaking with his father on Thursday evening they agreed that they would buy a garage in British Columbia and go into business together. He said his father, stepmother and 5 half-siblings would go to British Columbia on Friday to look for a business and call him early in the week at the house to tell him where to meet them. He continued that his father gave him his identification and the station wagon so he could get a new car.

He asserts he gave his father $4,100.00 from past break and enters that he had dug up after release. The funds were to help pay for the new garage. His father, Ray, was a petty thief but the defence led no evidence of that criminality to support Cook’s evidence his father wwas quite willing to accept stolen money from his son on the day of the murders. Such a sum was neither found at the house nor on Cook.

While his father had discussed with Cook getting a garage together and had looked around Alberta there were no plans to go looking in British Columbia at the time of Cook’s release. There was no indication on Thursday that father would not be at work on Friday and the siblings would not be in school.

The problems with Cook’s explanation are obvious. It defies credibility.

In the house are found Cook’s blood stained suit and a blood stained shirt that would fit him.

Cook states it must have been a stranger who entered the house after he left Thursday evening and killed his family and then put on Cook’s suit to move the bodies and try to clean up the house.

Cook breaks down crying uncontrollably when told by the RCMP his father is dead.

In giving his statements he is calm and direct in his answers to the RCMP. In trying to explain he tangles himself deeper. It was a surprise to me that as a career criminal he would think he could “explain” away a charge of murder. There was no chance of success. Defence counsel advise accused not to make statements as they cannot help the defence. As here too often the accused is caught in contradictions. Cook ultimately was forced to admit that he lied in parts of this statements.

Cook went through life lying to the police but he took pride that when “the game was up” he had never lied in court that he was not guilty. It is too subtle “a game” for a jury to appreciate he was telling the truth in court about not committing murder because, in the past, he had only lied to the police and not in court. 

Pecover, over hundreds of pages, analyzes the evidence and defence strategies at Cook’s trials. My next post takes a look at the evidence and trials.

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Here are my other posts on the book:

Pecover, J. - (2017) - The Work of Justice - The Trials of Robert Raymond Cook and Assessing the Evidence and Considering the Judgment from Causes of Wrongful Conviction and Robert Raymond Cook Facing Execution

Intervening and Not Intervening with Ashley Smith Choking Herself

In my previous post I reviewed More Tough Crimes edited by William Trudell and Lorene Shyba. In this post I look at the essay Breese Davies contributed on her representation of the Canadian Association of Elizabeth Fry Societies (CAEFS), “a national organization that works with and for criminalized women and girls,” at the inquest into the death of Ashley Smith. The essay was of particular interest to me as I was defence counsel in a Saskatchewan trial involving Ms. Smith.

Ms. Smith, 19 at the time of her death, died while incarcerated in a Federal prison in Ontario. A deeply troubled young woman she had a practice of tying ligatures around her neck and choking herself. She had tied such ligatures countless times during her time in prison. On the morning of October 19, 2007 she tied yet another ligature around her neck.

Not long before that morning corrections officers were being subject to discipline for “using ‘force’ too frequently in their efforts to save her life” and prison psychologists told officers “that engaging with Ashley would just encourage her to continue to act out”.

Breese sets out the consequences:

Eventually, the corrections officers were ordered not to enter Ashley’s cell as long as she was still breathing, and so on Otober 19, 2007, they didn’t immediately respond when Ashley once again tied a ligature around her neck. Instead, they watched and waited for close to fifteen minutes, listened as her breath became increasingly laboured, finally entering her cell to remove the ligature. Ultimately, they had waited too long. They waited and watched as she took her last breath. And as per Correctional Services of Canada policy, they videotaped it all.

At the inquest:

CAEFS was determined to show the order to ‘not enter Ashley’s cell until she stopped breathing’ as the real cause of her death.

Other parties at the inquest were seeking a conclusion that she was suicidal or that her death was a tragic accident.

Ms. Davies recognized the difficulty for corrections officers in dealing with Ms. Smith:

I recognize that it was incredibly challenging for correctional staff to work with Ashley, particularly toward the end of her life. She was determined and ingenious, and would use anything she could get her hands on to make a ligature to tie around her neck. She would also cover the surveillance camera in her cell to frustrate staff efforts to monitor her. This resulted in the staff sitting outside her cell for hours on end, watching her through the meal slot in her cell door. It was a mind-numbing task, punctuated by moments of acute danger. Ashley’s self-harming and aggressive behaviour pushed many correctional staff to their breaking point. She confounded the system because of her unpredictability, her ingenuity and her apparent compulsion to harm herself.

What Ms. Davies did not specifically discuss was the physical challenge posed by Ms. Smith who was 5’7” and about 240 pounds. She was strong and quick and volatile. Her size and strength meant she was bigger and stronger than most female corrections officers.

While female corrections officers were expected to deal with her in physical situations it was a continuing problem especially during her stay at the Regional Psychiatric Centre (RPC) in Saskatoon some months before her death.

While I was not a part of the inquest into her death I am very familiar with the challenges faced by correctional officers dealing with Ashley when she had tied ligatures around her neck.

I represented a correctional supervisor, John Tarala, who was charged with assaulting Ms. Smith while she was an inmate at the RPC.

RPC was and is an unusual institution in that it is both a prison and a health treatment facility.

In the case I handled Mr. Tarala and a newly qualified female corrections officer and a nurse were outside Ms. Smith’s cell because she had tied a ligature around her neck and was under a blanket. As with the guards in Ontario on that October morning when Ms. Smith died they had to decide whether to enter the cell.

Mr. Tarla and the guard entered Ms. Smith’s cell and there was a physical confrontation. Mr. Tarala was charged with assault and a trial was held in Saskatoon. The trial did not involve Ms. Smith testifying as she had already died.

Judge Singer, the trial judge, said the following about the allegation of Mr. Tarala striking Ms. Smith in his judgment:

I am left with the conclusion that she [the guard] did not see Mr. Tarala hit Ashley Smith, as described by the nurse, not because she was looking the whole time in the opposite direction, but because it did not happen.

Mr. Tarala testified at trial he did not hit Ms. Smith. For this post I will not explore the details of the evidence. At the end of the trial Judge Singer found Mr. Tarala not guilty.

Mr. Tarala explained at trial that he decided they should enter the cell and, rather than wait for a backup officer, he made the decision to enter the cell immediately. He said he did not know if Ms. Smith was choking and how long it takes for a person to choke to death.

In one of the most powerful and emotional moments of my life in court Mr. Tarala more specifically stated why he entered that cell. He said he had cut down 12 inmates (11 dead and 1 with brain damage) hanging in their cells during his time in corrections. He was not going to let this young woman die by choking herself. 

It has always been striking to me how much trouble he faced when he intervened to be ensure Ms. Smith stayed alive and how much trouble the guards in Ontario faced when they did not intervene.

More Tough Crimes edited by William Trudell and Lorene Shyba

(28. – 915.) More Tough Crimes edited by William Trudell and Lorene Shyba – A couple of years ago Tough Crimes was my favourite work of non-fiction of the year. I was drawn to a book containing a series of essays by Canadian criminal lawyers and judges, each writing about a case in which they had participated that was of personal significance to them. I knew two of the lawyers. The sequel More Tough Crimes provides another series of essays on Canadian criminal cases covering a wide variety of criminal cases.

Brian Greenspan, in The Eagle has Landed, deals with an increasing challenge for lawyers especially in North America. Alan Eagleson gained fame as hockey czar in Canada from the 1960’s through the 1980’s. He was the Executive Director of the National Hockey League’s Player Association, a promoter of hockey tournaments, a board member of Hockey Canada, a player agent, a lawyer and businessman. His myriad interests inevitably brought him into major conflicts of interest for which he faced parallel criminal investigations in the U.S. and Canada in the early 1990’s. He was indicted in the U.S. in 1994 and Canada in 1996.

Facing major criminal proceedings in two countries Greenspan advised the costs of defence would be approximately $4 million. He said Eagleson and his wife said they did not have the time and money to fight the charges and instructed Greenspan to seek a settlement.

Now with complex charges alleging fraud there is often opportunity to reach an agreement to plead guilty to some of the charges. Greenspan skillfully negotiated a plea bargain in which there were guilty pleas on each side of the border but no jail time in America. It would be a rare lawyer that would have his client serve time in an American prison over a Canadian prison.

I have never met Eagleson but I did see him in court in the 1990’s when he was in a civil trial over his representation of a hockey player. He showed an irresistible commitment to being the center of attention. During the proceedings the trial judge made an amusing remark. The lawyers chuckled. Eagleson drew attention to himself by laughing aloud such that you thought he must have considered it the funniest thing he had ever heard.

Brock Martland discussed bizarre events in one of Canada’s most prominent criminal trials of the past decade. In 2007 four members of a criminal gang and two individuals at the wrong place at the wrong time were murdered in a Surrey, British Columbia apartment.

Martland states:

The Surrey Six trial was a wild ride. The only certainty was uncertainty. The Crown cut a sweetheart deal with a gang leader, only to have his evidence firmly rejected by the trial judge. The Crown and police, likewise, made a deal with a trigger-man, Person X, but never got the benefit of his evidence. His evidence was excluded for reasons that remain a great mystery to the accused men, who are now serving life sentences, and to the public.

I find it very hard to accept secret rulings in criminal proceedings in Canada. For good reason criminal trials are to be open to the public. Justice in secret is justice denied. I can only hope the appeal process will bring out the issues of privilege that prevented a killer from testifying at the trial.

Martland goes on to raise an important question of public policy:

One remarkable feature of the case was the willingness on the part of the Crown and police to make a deal with a murderer. In British Columbia, historically, the Crown has made deals with accomplices and conspirators but not with the actual killers. There has been, in recent years, a significant shift.

I agree with Martland’s reservations about the shift to making deals with actual killers. As he points out in this case “ ‘deals with the devils’ did not help the prosecution’s case.”

My former law school classmate, Brian Beresh, explores a historic murder trial from 1934 in which Dina Dranchuk was convicted of murder at a trial in which the “prosecution’s case was completed in under three-and-a-half hours”, the “defence case was completed in nineteen minutes which included an opening address and the evidence of a medical expert”, defence counsel took five minutes to address the jury and the “jury deliberated for under forty-three minutes.” Though sentenced to hang her sentence was commuted.

Brian’s review sets out there were profound mental health issues with regard to the accused that could only have been touched upon in a trial of such brevity.

It is inconceivable to me that a defence counsel would spend but nineteen minutes in defence of his client.

Brian believes this case is another example of “unequal treatment of women in the criminal justice system”. He states at the end of his essay:

One is left with the conclusion that this was another appalling chapter in Canadian criminal justice where the accused’s gender did not aid, but rather hindered the quest for justice.

While not involved in any of the cases in More Tough Crimes I was counsel in a different case involving Ashley Smith. The inquest into her death forms one of the essays. My next post will discuss that inquest and my case.

Overall I found the essays in More Tough Crimes interesting but not as compelling as the essays of Tough Crimes. This collection was more a recounting of cases with fewer examples of lawyers explaining how they were affected by the cases. As with its predecessor More Tough Crimes would be a valuable resource for any crime fiction writer wanting inspiration and/or knowledge of the Canadian criminal justice system.

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Evans, C.D. – (2015) - Tough Crimes edited with Lorene Shyba

America on Trial by Alan Dershowitz Continued

(22. – 909.) America on Trial by Alan Dershowitz – This post continues my review of America on Trial; a compilation of famous American trials by Dershowitz, the well known Harvard Law Professor and litigator.

There are numerous constitutional decisions for important cases must often interpret the American Constitution. Originalists, currently in favour by American conservatives, would limit interpretation of the Constitution. An example of that position in a judgment is:

…. but while it (the Constitution) remains unaltered, it must be construed now, as it was understood at the time of its adoption. It not only the same in words, but the same in meaning, and delgates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex for the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

Variations on such language are pronounced daily by American conservatives of the 21^st Century. The paragraph quoted comes from the Dred Scott decision of 1856 in which the American Supreme Court ruled that freed American slaves were disqualified from being American citizens.

A century later the United States Supreme Court in Brown v. Board of Education did not limit itself to an “originalist” interpretation when it struck down segregation in schools, the separate but supposedly equal public education in place in many states. Dershowitz discusses the decision:

The opinion itself was elegant in its simplicity. Warren posed the essential question: “Does segregation of children in public schools solely on the basis of race … deprive the children of the minority group of equal educational opportunities?”

The answer was “we believe that it does”: “To separate [grade school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Dershowitz shows the importance of a good lawyer . In the Leopold and Loeb case a pair of Chicago teenagers murdered a boy to show they could kill and get away with murder. They were saved from the death penalty by the brilliance of Clarence Darrow’s closing argument. On executing children he said:

I am not pleading so much for these boys as I am for the infinite number of others to follow, those who perhaps cannot be as well defended as these have been, those who may go down in the storm, and the tempest, without aid. It is of them I am thinking, and for them I am begging of this court not to turn backward to the barbarous and cruel past.

In other cases, especially appeals to the United States Supreme Court, Dershowitz says the lawyers play little part in the decision. Having been a Supreme Court clerk and been involved in Supreme Court cases for decades he states:

Perhaps the most persisten mythology surrounding great cases, especially great Supreme Court cases, is that the lawyers – especially the lawyers for the winning side – played pivotal roles in the victory. That myth is certainly prevalent with regard to the lawyers who argued Roe v. Wade, the case that first established a woman’s constitutional right to choose abortion.

I believe he under states the significance of appellate lawyers such as himself, especially at the first level of appeal from a trial decision. A good appellate lawyer can be the difference in successfully challenging or defending a trial decision. Dershowitz provides a personal example in the Claus von Bulow case. Were it not for his fine work on the appeal I doubt von Bulow would ever had a second trial where he was found not guilty.

His discussion of the von Bulow case also displays Dershowitz’s forthrightness in addressing the merits of a decision. Von Bulow was charged with attempting to murder his wife, Sunny, by injecting her with insulin. Dershowitz asserts von Bulow was not merely not guilty but actually innocent of the charges:

But I sincerely believe that there was no compelling evidence of any crime. Accordingly, we can claim little credit for the jury’s correct verdict at the second trial. Innocent defendants should be acquitted, with or without good lawyers, though it does not always work out that way. But having an innocent client helps a great deal, just as it helps a doctor to have a curable patient.

A notable exception to his practice of strong personal opinions on the correctness of decisions is the O.J. Simpson case where he is unusually circumscript over O.J. being found not guilty. Dershowitz was primarily involved in the case as the lawyer who would frame the grounds of appeal if O.J. were convicted. O.J. called Dershowitz his “God Forbid” lawyer needed only if found guilty. With regard to the facts there is no expression of belief in O.J.’s innocence by Dershowitz to rival the ringing comments of his von Bulow statements. It is striking how muted his remarks are with regard to O.J.

America on Trial provides vivid snapshots of the American legal system. It is an excellent book. Currently, the author, now over 50 years into his legal career, continues to advocate for the unpopular and vilified. Most recently, he has argued that President Trump could not be guilty of obstruction of justice with regard to firing FBI director, James Comey. Dershowitz stated on CNN:

         "You cannot have obstruction of justice when the president

         exercises his constitutional authority to pardon, his 

         constitutional authority to fire the director of the FBI, or his 

         constitutional authority to tell the director of the FBI who to 

         prosecute, who not to prosecute," .....

We shall see if Dershowitz becomes President Trump’s “God Forbid” lawyer.

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Dershowitz, Alan - (2017) - America on Trial - Part I