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| John L. Hill |
A journalist should declare a bias. I first became aware of exonerating innocent prisoners when I was asked to join the Board of the Association in Defence of the Wrongly Convicted, now called Innocence Canada. I met a dedicated and hardworking group there, such as Rubin “Hurricane” Carter and lawyers like James Lockyer and Daniel Brodsky. These people worked as tirelessly as have others in similar affiliations in Canada and the United States in providing pro bono legal and investigative services to individuals seeking to prove the innocence of crimes in which a miscarriage of justice had occurred, working to redress the causes of wrongful convictions and supporting the exonerated after they are freed.
Innocence Canada has chalked up 29 exonerations. But the work is ongoing. Recent news reports have painted a horrendous picture of the misery caused when the justice system gets it wrong. On Sept. 28, 2024, the Wisconsin Innocence Project announced that two brothers, David and Robert Bintz, both now in their late 60s, were exonerated for killing a woman in 1987. DNA evidence was able to uncover the identity of the actual killer.
Nevertheless, the killing of possibly wrongly convicted individuals goes on. Delays often worked to the advantage of those given the death penalty. The lack of appropriate chemicals for those states using lethal injection as the means of capital punishment allowed the time between sentence and carrying out the sentence to be used to explore improper verdicts. Yet delays will dwindle in future as speedier methods are adopted. On Sept. 27, BBC News reported that the state of Alabama used nitrogen gas to execute Alan Eugene Miller, who had been sentenced to die for the 1999 workplace murders of Lee Holdbrooks, Christopher Scott Yancy and Terry Jarvis. Miller was the second American to be subjected to this form of execution, a method deemed cruel when used for euthanizing animals.
That execution marked the sixth in a week, a rate unseen in 20 years. Even those who condone capital punishment find it reprehensible if it is imposed on one who was factually innocent. But once the accused is dead, there can be no reprieve. As horrible as accounts of the death penalty are, the physical, psychological and emotional turmoil of those who spend years in prison and who have done nothing wrong should be viewed as equally intolerable. A recent film featured at the Toronto International Film Festival, The Freedom of Fierro, documents how César Fierro’s life was changed by 40 years in prison, much of it in solitary confinement, and could not be put together again after he was exonerated and returned to his home country of Mexico.
What causes our justice system to make such mistakes? There are numerous ways a prosecution can go off course, including false confessions, eyewitness misidentification, lying informants, false testimony, prosecutorial misconduct, forensic errors, fabrication of evidence, false allegations, systemic discrimination, tunnel vision, the failure of police and prosecutors to make full disclosure and even torture. As criminal law practitioners, we must guard against a more common reason: bad lawyering, sometimes called the ineffective assistance of counsel. Lawyers must be well-trained and adequately financed, often through legal aid, to conduct a proper investigation.
As I write, two men I believe are factually innocent have had their businesses and family lives ruined for what I believe to be wrongful convictions. Vito Buffone and Jeffrey Kompon have been sentenced to life for what has been described as the largest cocaine bust in Canadian history. Unlike murder cases where DNA can come to the rescue, lawyers acting for these two gentlemen will have to work hard to develop a case to convince the minister of justice that the courts did make a mistake. It is a job that could have been expedited had the Senate of Canada moved at a faster clip in approving Bill C-40, a law that would establish a commission to review such cases.
Our judicial system sometimes makes mistakes. It happens in adjudicating cases as serious as murder. It also occurs daily when our courts accept guilty pleas from individuals on lesser charges, even though they are innocent, “just to get it over with.”
As lawyers, let us use Oct. 2 to remember that we are instrumental in ensuring that our judicial system’s truth-finding objective is truly operable.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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