Court rejects 2 shades of innocence
JUDGES' WORDS
Excerpt from yesterday's Ontario Court of Appeal ruling on the case of William Mullins-Johnson, wrongfully convicted of raping and killing his niece in 1993:
"There are important policy reasons for not, in effect, recognizing a third verdict, other than "guilty" or "not guilty," of "factually innocent." The most compelling, and, in our view, conclusive reason is the impact it would have on other persons found not guilty by criminal courts. ... To recognize a third verdict in the criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt."
But judges came as close as they legally could to `factual innocence,' says happy Mullins-Johnson
The Ontario Court of Appeal appears to have closed the door on the concept of a third verdict in criminal trials to allow wrongly convicted persons to be declared "factually innocent," saying the move could degrade the meaning of the words "not guilty."
"There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent," said Associate Chief Justice Dennis O'Connor and Justices Marc Rosenberg and Robert Sharpe in a written judgment.
The "most compelling" reason, the judges said, is the impact it would have on other people found not guilty by the criminal courts – relegating them to a lesser class of persons who have benefitted from the presumption of innocence and the requirement that the Crown must prove its case beyond a reasonable doubt.
The panel confronted the thorny issue yesterday in the case of William Mullins-Johnson, 37, who spent 12 years in prison after being wrongly convicted of murdering his 4-year-old niece, Valin, on the basis of flawed pathological evidence.
The court acquitted Mullins-Johnson on Monday after an emotional hearing at Osgoode Hall. O'Connor expressed the court's profound regret for the Sault Ste. Marie native's ordeal.
The court went even further in its written reasons yesterday, saying the conviction was "wrong" and twice describing Mullins-Johnson as the victim of "a terrible miscarriage of justice."
James Lockyer, the exonerated man's lawyer, had requested that the court go beyond simply acquitting him.
He asked the panel to express in its written reasons that Mullins-Johnson, who had been accused of strangling and sodomizing his niece, is "actually innocent" and was convicted of a crime that simply did not occur.
Ontario's highest court did, however, use strong language to drive home the point that there is no evidence Valin's 1993 death was a crime, saying the arrest was the result of an "inexorable rush to judgment" triggered by Sault Ste. Marie doctors Bhubendra Rasaiah and Patricia Zehr – both involved in the autopsy on Valin's body – and Toronto pediatric pathologist Dr. Charles Smith.
"It is now clear that there is not and never was any reliable pathological evidence that Valin was sexually assaulted or otherwise abused during her short life and certainly not on the evening of her death," the court said. "While the cause of Valin Johnson's death remains undetermined, there is now no evidence to suggest it was the result of any crime."
"Nothing we have said in these reasons should be taken as somehow qualifying the impact of the fresh evidence," said the panel. "That evidence, together with other evidence, shows beyond question that the appellant's conviction was wrong and that he was the subject of a terrible miscarriage of justice."
For Mullins-Johnson, now a first-year student at the University of Toronto, it was more than enough.
"I'm as happy as can be," he said yesterday. "They came as close as they could, legally speaking, in terms of factual innocence. If you read it, that's actually what they're saying."
Lockyer was also gratified.
"I accept the court's judgment and I accept the decision they've come to," he said. "It doesn't trouble me, because they've made it abundantly clear that Mr. Mullins-Johnson is a victim of a terrible miscarriage of justice and they've said it twice in a short judgment. What more could I ask for?"
http://www.thestar.com/News/Ontario/article/268769
MULLINS-JOHNSON CASE
Wrongfully convicted, but not 'innocent'
Appeal court passes up chance to make legal history by fashioning a verdict of factual innocence
The Ontario Court of Appeal refused yesterday to fashion a novel verdict of "factual innocence" that would apply to wrongful conviction cases, saying it was loath to downgrade the worth of a conventional acquittal.
But while the court passed up its chance to make legal history, it nonetheless described the wrongful murder conviction of William Mullins-Johnson, 37, as a "terrible miscarriage of justice."
It said the murder he was charged with never actually took place, but was a fiction created by shoddy pathological work.
Describing the case as a tragic "rush to judgment," the court noted that Mr. Mullins-Johnson was arrested just 11 hours after his four-year-old niece, Valin, was found dead in her bed. He spent the next 12 years behind bars.
"It is now clear that there is not - and never was - any reliable pathological evidence that Valin was sexually assaulted or otherwise abused during her short life, and certainly not on the evening of her death," said Associate Chief Justice Dennis O'Connor, Mr. Justice Robert Sharpe and Mr. Justice Marc Rosenberg.
"While the cause of Valin Johnson's death remains undetermined, there is now no evidence to suggest it was the result of any crime. That Mr. Mullins-Johnson was arrested, convicted of first-degree murder and spent twelve years in prison because of flawed pathology evidence is a terrible miscarriage of justice."
On Monday, the court acquitted Mr. Mullins-Johnson and joined the Crown in offering him an extraordinary apology for his ordeal, but reserved its reasons for judgment.
An aboriginal man from a reserve near Sault Ste. Marie, Mr. Mullins-Johnson told the court in moving testimony that only a declaration of utter innocence could change the mind of people who continue to believe he is a child killer.
"There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent," the appeal court responded yesterday.
On the night of Valin's death, Mr. Mullins-Johnson was living with his brother, Paul, and his sister-in-law, Kim, in their home on the reserve near Sault Ste. Marie. The previous night, he had babysat their children.
The next morning, her mother found Valin dead. Eleven hours later, based entirely on autopsy evidence, police arrested Mr. Mullins-Johnson for first-degree murder.
The case began to disintegrate five years ago, when international experts poked holes in disgraced pathologist Charles Smith's conclusion that Valin was sexually violated and murdered.
The court made a point yesterday of thanking the province's chief pathologist, Michael Pollanen, "whose diligence set in motion the chain of events that led to this acquittal."
It also named three prime culprits whose errors led to Mr. Mullins-Johnson's ordeal:
Bhubendra Rasaiah, who concluded at the original autopsy that Valin was murdered between 8 and 10 p.m. the previous night.
Patricia Zehr, a gynecologist and obstetrician with expertise in child sexual abuse, who declared "that this was one of the worst cases of child sexual abuse she had seen."
Dr. Smith, whose finding of murder was based on phantom injuries to Valin's anus and erroneous conclusions based on the settling of blood vessels in her neck and upper chest.
