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A wrongful conviction means that a person who did not commit the crime is sent to jail and, in some countries, executed. Since the early 1970s, for example, more than one hundred convicted murderers in the United States have been exonerated.
Many Canadians are familiar with the cases of Donald Marshall Jr., David Milgaard and Guy Paul Morin who were convicted of homicides that they did not commit and spent many years in penitentiary. Less is known about miscarriages of justice in New Brunswick.
When murder convictions are overturned years later, in many cases the actual perpetrators go undetected and unpunished. This is a double miscarriage of justice; not only are the innocent punished for crimes they did not carry out, the victims and their families do not receive justice.
Common causes of wrongful convictions, which have led to the execution of innocent persons in the United States (and in Canada prior to the abolition of the death penalty) include false or improper confessions, use of in-custody informers, inconsistent eyewitness identification and incomplete or ambiguous forensic evidence. In some cases mistakes have been made by defence counsel. Another issue is disclosure: in the past Crown attorneys did not always reveal all the relevant evidence to the defence. Finally, there is the passage of time: evidence is destroyed or misplaced, memories fade and investigators retire and pass away.
Historical evidence suggests that on occasion witnesses are coerced by pressure from police and that the accused because of prior criminal records lack sympathy in the community. There is also the matter of prosecutors making deals with accused individuals in order that they testify on behalf of the Crown. In these cases, accused persons pleaded guilty to lesser charges or charges were dropped.
Over the years journalists have raised questions about the 1984 murder convictions of Robert Mailman and Walter Gillespie, charged with the brutal slaying of George Gilman Leaman in Saint John. Although a key eyewitness almost immediately recanted his testimony, an appeal of this conviction was dismissed by the New Brunswick Court of Appeal in 1998.
Source: Don Cayo,”The Convictions in Question,” Globe and Mail, April 20, 1998.
The first officially-recognized wrongful conviction case in New Brunswick is that of Erin Michael Walsh, an Ontario resident who was arrested for the murder of Melvin ‘Chi Chi’ Peter’s in Saint John in 1975. Walsh and a friend had met and consumed alcohol with three local men, including Peters. A struggle took place inside an automobile and a saw-off shotgun blast had killed Peters. Walsh, an outsider with a criminal record, was convicted of second degree murder. He worsened the situation by taking his own lawyer and several jail guards hostage prior to the trial.
This lawyer quit and the new lawyer had only a few days to prepare. Furthermore, Walsh refused to give a statement to the police and refused his new lawyer’s advice not to testify. An admitted drug dealer with a record of property and weapons offences, he was not a creditable witness. The jury deliberated for less than one hour and Walsh was convicted and sentenced to life in penitentiary. An appeal was denied in 1982. The situation was not helped by a series of conflicting statements given by Walsh over the years. In 1984 Walsh, whose criminal record extended back to 1965, was granted parole. Over the next few years he continued to be in trouble with the law.
Using access-to-information legislation, in 2005 Walsh requested documentation from the investigation and began a new legal battle. In 2008, suffering from terminal cancer, he was freed from prison after more than two decades when the New Brunswick Court of Appeal quashed his sentence. The Crown had opposed an acquittal and argued for a new trial but conceded that there had been a denial of procedural fairness.
The federal minister of justice had ordered a re-examination of the evidence. The Crown had not disclosed key evidence to the defence, including a ballistics report, evidence from civilian eyewitnesses who heard Walsh crying out for help as he had been taken to the car and a recordings of conversation between two Crown witnesses in jail as they had concocted a story to place the blame on Walsh. One of the alleged motives, according to this story, had been racism (Peters was African Canadian).
Peters then decided to sue the province of New Brunswick, the police and the prosecutor for being deprived of a right to fair trial and for wrongful imprisonment. The case was made more controversial by remarks allegedly made about Walsh by New Brunswick Attorney General T.J. Burke. A year later Walsh accepted an out-of-court settlement with the government of New Brunswick for his wrongful conviction. Details of the settlement were not released. Walsh died at his home in Kingston, Ontario in 2010.
In 2007 the University of New Brunswick Law School began to offer seminar on wrongful convictions. Students not only study the issue, they also gain practical experience by working with counsel for Innocence Canada.