If the wrong person is convicted, the right one is still on the street: Lockyer
Thursday, January 28, 2010
- Organization: Midland Free Press
For a few minutes Friday the people attending a luncheon to raise funds for physician recruitment sat in hushed silence as lawyer James Lockyer read from a 1959 trial transcript:
"Steven Murray Truscott, I have no alternative but to pass the following sentence upon you. The jury has found you guilty after a fair trial.
"The sentence of this court upon you is that you be taken from here to the place from whence you came and there be kept in close confinement until Tuesday, the 8th day of December, 1959, and upon that day and date you be taken to the place of execution and that you there be hanged by the neck until you are dead, and may the Lord have mercy upon your soul. Remove the prisoner please."
Lockyer, a founding director of the Association in Defence of the Wrongly Convicted, had intended to speak about an entirely different
case. But a newspaper headline that morning reporting that 62 per cent of Canadians favour of a return to capital punishment prompted him, he said, "to change tack."
Steven Truscott, he reminded the audience, was 14 when he heard a judge read those words to him. He had been accused of the murder of Lynne Harper. The death sentence was postponed for two months, then commuted to life in prison on Jan. 21, 1960 -just 26 days before he was to be hanged.
"The poll reported by the newspaper," he went on, "means that at any gathering of this size there are bound to be a large number of people who support the death penalty.
Since the 1950s we've had successive Prime Ministers in this country who all opposed the death penalty.
But now we have a Prime Minister who does not. And I find that worrying," he told the audience."
In an interview afterward, Lockyer said he thinks it would be unlikely there would be a vote on capital punishment in a minority government situation.
"I'd certainly worry if it were a majority situation.
"There's always the hope that if there was ever an attempt bring it back the Supreme Court of Canada would rule it unconstitutional. I'd rather not have to resort to see it tested on the issue of constitutionality. I'd rather not have it, period."
Asked whether he thought it could become part of a Stephen Harper election platform, he replied:
"I've no doubt the PM would want to keep talking about it. That's one of the reasons I spoke the way I did today. I think it's so important we meet them head on and meet them as quickly as we can.
"The last time I saw the (polling numbers on capital punishment) the figures they were well below 50 per cent," he added.
"I suppose when you have a government as we do that promotes law and order as much as it does it can get into peoples' heads that we are
living in sort of a state of anarchy, which is quite ridiculous. Crime levels are sinking fast."
Lockyer, who has been involved in exposing the wrongful convictions of Guy Paul Morin, David Milgaard, Clayton Johnson and Sherry Sherett -among others -gave two speeches at the Mayors Day in support of physician recruitment.
At breakfast, he focussed on the little known case of Anthony Hanemaayer; a case, he recalled, that had "an extraordinary ending."
In 1987, an intruder entered a Scarborough home and the room of a sleeping 15-year-old girl, and as she would testify: "put his left hand over my mouth and he says, "Don't say anything. Be quiet. Shut the ----up because I have a knife and I'll kill you if you don't be quiet."
Lockyer said her mother, sleeping in a nearby room, "was awakened by sounds and got up, turned on the hallway light and went into her daughter's bedroom... and confronted the man. The intruder ran down the hall, and fled from the house.
"It was the mother's intuition that the perpetrator had been keeping watch on Lily and their house for several days, and likely was a worker involved in construction in their area. She drove around her area looking at construction sites to see if she could see the man.
"She telephoned one of the companies working in the area and spoke to a lady in the personnel department. She provided her description of the intruder to the lady who then supplied Mr. Hanemaayer's name as someone who fit the description.
"The mother forwarded his name to the police. On November 20, 1987, almost two months after the break-in, two officers attended her home. She was shown a photo lineup and picked out Mr. Hanemaayer's photograph. It seems that it was a larger photo than all the others and was blurred unlike the other pictures.
"On December 18, 1987, Mr. Hanemaayer, who was 19, was arrested at his home in Newmarket, where he was living with his wife (who subsequently left him).
"After lunch on the second day of his trial, Hanemaayer advised his lawyer that he wanted to plead guilty as charged. He did so and received a sentence of two years less a day in reformatory in addition to his pretrial custody.
"He would later explain," Lockyer said, "that he pleaded guilty to a crime he did not commit because, in part, he had already been in custody awaiting trial for eight months; he found the mother to be a very convincing witness -even though I knew she was wrong in her identification of me'."
Hanemaayer agreed to a plea bargain and was sentenced to two years, but stayed out of the penitentiary. Nearly 18 years later, on Oct. 17, 2005," Lockyer said, "Paul Bernardo's counsel, sent an e-mail to the Toronto Police Sex crimes unit listing 18 sexual assaults "and other offences" which he "believed not to have been solved." The sixth offence on the list was the Scarborough sexual assault case.
"On April 13, 2006, Bernardo was interviewed for two hours at Kingston Penitentiary by two officers of the Sex Crimes Unit.
"Bernardo demonstrated a remarkable memory of the crime itself, the layout of the house, and his flight from it.
"On May 4, 2006, the officers interviewed Mr. Hanemaayer." Lockyer noted, " but did not tell him that Bernardo had confessed to the crime.
"Mr. Hanemaayer found this out through good fortune.
"In 2006, I was in the midst of defending Robert Baltovich who was charged with the murder of his girlfriend Elizabeth Bain. Part of the defence was that Paul Bernardo may well have been her killer.
"This, in turn, obliged the Crown to disclose everything in its possession about Bernardo's crimes and, there in the middle of it all, was (the information concerning Bernardo's admission.)"
Lockyer said Bernardo's memory of that day remained so vivid that two years later he returned to the house to steal one of the personalized licence plates from the mother's car to give to his wife. The licence plate read: Kar Kar.
In his luncheon remarks Lockyer referred to his work on behalf of Steven Truscott, whose conviction came under review by the Court of Appeal for Ontario, and of Robert Baltovich, whose murder conviction was quashed by the Ontario Court of Appeal in November, 2004.
On August 28, 2007, the Ontario Court of Appeal acquitted Steven Truscott. On April 22, 2008, Robert Baltovich was also acquitted.
He reviewed the impact that DNA evidence, noting "the first time it was used in Canada with success was in the wrongful conviction of Guy Paul Morin. Guy Paul's exoneration led to the exoneration of David Milgaard.
"It never fails to surprise me that people -even today -think of wrongful convictions as aberrations.
"People tend to forget," he reminded the audience, "that if the wrong person is convicted the right person is still out there on the street."
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