Autopsies of Investigations that Failed

Sophonow, Morin & Dix

These are murder investigations which failed. In two, the accused was convicted and eventually exhonorated. In the last, the prosecution fizzled out mid-trial, and the defendant successfully sued the police and Crown.

1. Tunnel vision: failure to investigate properly alternate suspects.
2. Jailhouse informants: reliance upon people who have motives to lie.
3. Inadequate forensic examination, and overestimating the strength of scientific conclusions.
4. Pushing witnesses to believe in the suspect’s guilt.
5. Inadequate consideration of time lines.
6. Failure to disclose relevant information.

1. Investigate alternate theories of guilt.
2. Investigate the reliability of your sources of information, especially jailhouse informants.
3. Get objective forensic evidence.
4. Take care to understand the strength of scientific conclusions.
5. Prevent contamination of exhibits.
6. Prevent contamination of witnesses.
7. Figure out the time-lines.
8. Beware of eyewitness identification.

Other Inquiries

Truscott

In 2007, a 5-judge bench of the Ontario Court of Appeal found that the 1959 conviction of Steven Truscott, 2007 ONCA 575 was unreliable, and overturned it.  The main problems were unreliable science, inadequate disclosure, poor interviewing techniques, and an unlikely theory of the murder.  In a somewhat unusual decision, the court acquitted him even though they thought that there was evidence on which a jury could reasonably convict.

Estimating time of death from the condition of a corpse was an inexact science.  In this case, the extent of digestion of stomach contents was a key piece of evidence; unfortunately the inferences drawn were contraversial.

Dalton, Parsons & Druken

In October 2006, a retired judge of the Supreme Court of Canada inquired into three miscarriages of justice in Newfoundland.  The first part deals with the 8 years it took to conduct Mr Dalton's conviction appeal.  This has little relevance for police.  However, Parsons and Druken were convicted of murders they did not commit.  The report analyzes why.  The commission report is available here.

Druken

• Police suggested answers to many witnesses, particularly the daughter, who was a child.  This altered their memories.
  
• Too many people tramped through the crime scene.
• No neighborhood canvass.
• Joint interviews.
  
• Exhibits at the scene were not adequately documented (including a cigarette butt which turned out to bear another suspect's DNA.)
• Exhibits not examined forensically.  (Particularly the cigarette butt.)
• Assumptions should be tentative.  (They incorrectly assumed that the red stuff on the cigarette butt was the victim's lipstick.  It was melted carpet.)
  
• After investigators became ever more suspicious of Druken, they re-interviewed witnesses.  As they went along, they told the witnesses incriminating information they had gathered about him, and the witnesses then gave statements that pointed ever more toward him.  The best identification they had was voice recognition, from a witness who in her first statement did not recognize the voice.
  
• No critical thinking about the case.
• Failure to seal applications for warrants resulted in hold-back information becoming public.
• Police applied great pressure to family members to obtain information.  They suggested answers.  They laid obstruction charges against witnesses as a means of loosening up their tongues.  They visited them often.
  
• Police and Crown relied on a jailhouse informant who had been proven unreliable on other matters.
• The polygrapher was the main investigator.
• Failure to disclose polygraph statements of witnesses.
• Polygraph of main suspect not recorded.
  
• No team; no analyst; insufficient funding; disorganized wiretap team using ancient equipment.
  

Some lessons include:

• The purpose of taking statements is not to lay a charge, but to collect information.
• Polygraph experts can disagree. (p.214)
  
• Interviewing child witnesses requires particular care to avoid suggestion because the interviewer enjoys such credibility with the child. (p.234)
  

Milgaard

• Always seek the truth from a witness; don't pressure a witness to say the "right" thing.  The commission found insufficient evidence to prove that this occurred, but a gap in the investigative record suggested it.
• Audio or video-record your discussions with important witnesses.  Three key witnesses changed their stories, particuarly after a polygraph interview.  Nobody recorded the interview - typewritten summaries were created later.  This created the gap in the police records.  Milgaard's supporters called it a conspiracy and cover-up.  You don't need this kind of hassle decades after your investigation.  Record the conversation, and store the recording on file.
• Handle forensic exhibits so as to prevent cross-contamination.
• Don't skimp on reliable forensic techniques, like DNA testing where it is available.
  
• Investigate alternate suspects, even if your prime suspect has already been convicted.  The commissioner recommended that complaints after the conviction should be referred to the prosecution service for their direction on further investigation.
  
• Share information with other investigative agencies.

• Before disposing of exhibits, formally ask the accused if he has any continuing interest in them.
• Keep investigative records or electronic copies of them for a long time after the investigation.

Civil Suits

The court found that you can get sued for negligent investigation.  In this case, the officers didn't stray far from the standards of investigation that applied back then. Beware.  In my view those standards have changed.

Beware of short-cuts in investigations. Always do the lineup correctly the first time.  Don't interview witnesses together.  Consider identification evidence carefully.  Investigate alternative suspects.

The Innocence Project

In the United States, The Innocence Project has exhonorated hundreds of people convicted of serious crimes, and is investigating more.  It rescued many from death row.  Their website identifies similar problems to our own, and makes for interesting reading.

Heads of Prosecutions - Report on Miscarriages of Justice

The top prosecutors across Canada reviewed all the sources of information available, and reported on Eyewitness identification, tunnel vision, false confessions, forensic evidence and in-custody informers.

Other cases of Investigational Problems

In the murder case of R. v. Wood, 2006 ABCA 343 (Alta C.A.) the police forgot to mention that hold-back information was disclosed to another police force, and that the eyewitness had identified another person as the killer.  The murder occurred in 1979.  He was convicted, appealed successfully and was convicted again.  Now, more than 25 years later, he gets another trial.  He almost got a stay of proceedings.  Please remember to disclose everything in your file.

Mr Persaud (2007 ONSC) taught difficult children. One of them complained of an assault in the classroom. The school suspended Mr Persaud, and wrote a letter to parents about it after which some kids made more complaints. Police took statements from the kids that complained, but not the other children who were present at the time. The absence of coroborrating evidence from other people present at the time of the alleged assaults caused the judge to doubt the allegations. It also appeared that the letter to the parents could have stirred up "me too" complaints. Defence also complained of the risk that the children colluded. When investigating complaints from a group, you should canvass with each witness:

• Who else could have seen what happened?
• What do you know of other complaints? How do you know?
• Please don't discuss your complaints with other witnesses.

To avoid accusations of tunnel vision, you should always canvass all reasonably available sources of information, not just the complainants.

Sophonow Inquiry

Sophonow Facts

In Winnipeg, somebody murdered the girl who worked in the donut shop by strangling her with twine. Several eyewitnesses saw him walking away. One confronted him on a bridge. He threw the twine over the bridge. Some preliminary results suggested that the twine came from British Columbia.

Sophonow came from Vancouver just before the murder. He resembled the descriptions given by the eyewitnesses. At first, the eyewitnesses gave tentative identifications of Sophonow, in live and photo lineups, but those identifications firmed up with repeated interviews.

A couple of officers familiar with the case interviewed Sophonow in Vancouver. Accidentally or deliberately, they conveyed to him how the door of the Donut shop was locked. When this same information emanated from Sophonow later in the investigation, it made him look guilty.

At the preliminary hearing, defence offered an alibi. It seemed contrived.

The Taking of Statements

• if it’s a written statement, ask the witness to read and check the words attributed to them.
• hold back important information – don’t reveal details of the scene
• videotape the interview if at all possible
• interviews of accused which are not taped should not be admissible  (Note: This is  not  the law.)

Eyewitness Identification

• science says the witness’s confidence does not predict accuracy. They can be sure and wrong at the same time.
• Recognition differs from resemblance.  In R. v. Monias 2005 ABCA 353, a bank teller "recognized" the accused robber from a photo lineup by hesitating over a photo, and going back to it; but when he turned up in her bank acting suspicious she didn't recognize him.
  
• science says that tainting occurs all too easily – If you show an unfair lineup, and then a fair lineup, the person who looks familiar in the second lineup will be the guy that was in the first lineup.
  
• do it right the first time – don’t let your suspect’s photo stand out.
• “Did I pick the right guy?” Don’t answer this question. Don’t even hint. This is considered tainting. It still happens today.
• Prevent witnesses from discussing their identifications. (Sophonow procedure achieves this)

Tunnel Vision - Terry Arnold

• matched the descriptions of the perpetrator
• expressed romantic interest in the victim
• had no alibi
• turned up at the hospital afterward asking about the victim

None of this was pursued.  Therefore:

-> structure your investigational team to catch such suspects
-> proof of the positive is good; but disproof of the negative is harder. In a serious case, that disproof is necessary.

Forensic Testing – Objective Evidence

• who manufactured specific twine made some difference in this case. Although a test was available, it was never tried.
• subjective opinions aren’t as good as science
• hard exhibits make great material in the lab and in the court room.
• it’s a pain managing them; many turn out to be useless. But the good ones make all the difference

Time Lines

• on the evidence available to the police in the Sophonow case, there was good reason to believe that Sophonow had a real alibi.
• nobody prepared a reliable time line.

The Investigation Isn’t Over (ever)

• Alibi – disclosed late, and suspicious at that – still needs full investigation
• handle the alibi witnesses with respect, but be clear about their duty to tell the truth
• *what do you ask an alibi witness? (relationship, discussions with suspect/family, motives, etc)
• videotape those interviews
• after the conviction, still hang on to the original evidence – subsequent technologies may solve the case – (eg. Christine Jessop’s underwear bore the semen stain that cleared Morin.)

Jailhouse Informants

“Jailhouse informants comprise the most deceitful and deceptive group of witnesses known to frequent the courts. The more notorious the case, the greater the number of prospective informants. They rush to testify like vultures to rotting flesh or sharks to blood. They are smooth and convincing liars. Whether they seek favours from the authorities, attention or notoriety they are in every instance completely unreliable. It will be seen how frequently they have been a major factor in the conviction of innocent people and how much they tend to corrupt the administration of justice. Usually, their presence as witnesses signals the end of any hope of providing a fair trial.

They must be recognized as a very great danger to our trial system. Steps must be taken to rid the courts of this cancerous corruption of the administration of justice. Perhaps, the greatest danger flows from their ability to testify falsely in a remarkably convincing manner. In this case, it will be seen that an experienced detective thought that Mr. Martin, a very frequent jailhouse informant with a conviction for perjury, was a credible witness. He lied in this case and he has testified in at least nine other cases, undoubtedly with the same degree of mendacity. Jailhouse informants are a festering sore. They constitute a malignant infection that renders a fair trial impossible. They should, as far as it is possible, be excised and removed from our trial process.

Jailhouse informants are a uniquely evil group. Justice Kaufman in the Morin Inquiry dealt extensively with jailhouse informants and the harm that they occasion. His thoughtful and helpful recommendations are carefully set out in his report. I will adopt them but go still further in my recommendations on this subject.”

• use only one
• only if he can produce unique information known only to the perpetrator; it must be detailed and significant as to the crime and the manner in which it was committed; and must be independently confirmed
• this demonstrates the importance of maintaining security of the hold-back information. Don’t let it leak out! (Made much difference in the Abbotsford Killer case.)
• need to reveal to Crown (and defence) all the motives this inmate may have to lie.

Full Disclosure to Crown and Defence

• Crown needs the good and the bad, and needs to reveal all to the defence.

* Crown needs to know where the holes are in advance (eg  OJ case).

Morin Inquiry

http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/

Morin Facts

The school bus dropped Christine Jessop aged 9 off near her home before her parents got home from work. When they got home she wasn’t there. 3 months later, her body was found 56 km/h away. She had been stabbed and there was semen in her underpants.

Hair and fibre found near her could have come from Morin. Hair and fibre found in his car could have come from her.

Jailhouse informants claimed Morin confessed.  They were placed together in the prison, and had ample time to compare notes.

Forensic Evidence

Mere screenings don’t pack much punch in a criminal courtroom.We need proper forensic examination and conclusion.

Police failures

The Commissioner found certain failings in the investigation by York Regional Police. These included:

1. The failure to preserve evidence at the Jessop residence.
2. The failure to ‘dust’ the residence (and particularly Christine Jessop’s room) for fingerprints either to preserve her fingerprints or determine if foreign fingerprints were present. The house was not fingerprinted even in the ensuing weeks following Christine’s disappearance.
3. The failure to conduct an in-depth canvassing of the Queensville homes to meticulously document and clarify the memories of prospective witnesses at the earliest opportunity.
4. An inadequate system for keeping track of which officers were assigned to do what and whether they had completed those tasks.
5. An inadequate system to ensure that all reports were read and processed in a timely way. The potential for leads and follow-ups to slip through the cracks was present and, unfortunately, this did occur.
6. The indexing system for reports was archaic. It did not permit an officer to search for all apparent sightings of Christine Jessop or vehicle sightings, without having the actual name of the author of each report or the name of the claimant for the sighting.
7. There was a failure to systematically prioritize and follow up on ‘hot leads.’ In one case (the sighting of a man who appeared to keep a child forcibly in a car) the follow-up came 12 days after the information was passed on to the police.

8. They performed an unstructured search of the site of the body, at night with a snowstorm coming on. They should have covered it with a tarp, and waited for the next day. Officers were smoking and discarding cigarettes at the scene; others were discovering cigarettes and maybe a lighter possibly attributable to the murderer.
9. One of the officers kept two different notebooks with differing entries for the same events.
10. Other officers’ evidence about the cigarettes varied as time passed.
11. Continuity – the memory of the officer in charge of the exhibits improved over time, which suggested poor initial handling, and possible cross-contamination of exhibits.
12. Tunnel vision – Morin was an odd guy, who had an odd way of expressing himself. Investigating officers attributed more to his remarks than in retrospect they should have. “Otherwise, I’m innocent.” “All little girls are sweet and innocent but grow up to be corrupt.” “[The body] was found across the Ravenshoe Road. Compare this with Dix, in which the investigators dismissed an alternate suspect as “just an odd guy”.
13. Tape recorder failed for 2^nd half of Morin’s interview.
14. Time lines didn’t add up – victim’s parents’ time lines didn’t add up. This was brought forcefully to their attention, and they changed their evidence. This was done in a joint interview, with no notes taken.
15. Interviews of sensitive witnesses done without recording or notes. Their evidence “developed” over time.
16. Not until after the first trial did one Cst Robertson report that his dog, not a formally trained police dog, had detected the scent of the victim’s sweater in Morin’s car. He had no notes made at the time of this incident.
17. Post-charge behaviour overblown – Morin behaved unconcerned about the victim when a police officer questioned another witness. Morin didn’t participate in the search for the child. He didn’t want to talk about it with a neighbor. He didn’t sound as though he cared. A neighbor spoke with Morin about the disappearance of the girl. Morin was holding hedge clippers to tightly that his knuckles went white. On the funeral night, someone claimed to hear a male voice say “Help me, help me, Oh God help me.” Someone recognized it to be the accused’s. (He didn’t attend the funeral.)

Jailhouse Informers

Need confirmation of their evidence with details. Need to know about informer’s character, whether he requested any benefits, and whether anyone made any promises, whether he has given reliable information in the past, whether he previously traded information for benefits, whether he previously testified, and whether he lied in that testimony, whether he made a written record, was it contemporaneous, circumstances of the statement of the informer, manner of the taking of the informer’s statement (any possible tainting or leading).

Consider checking the alibi of the jailhouse informer: maybe the informer knew these details because he was the offender.

Ongoing Post-conviction Disclosure

Kaufman recommended post-conviction disclosure of any information tending to exhonorate the accused. Eg DNA analysis.

A summary of the Judgment in Dix v. Canada (A.G.), 2002 ABQB 580

http://www.albertacourts.ab.ca/jdb/1998-2003/qb/Civil/2002/2002abqb0580.pdf

Facts

Dix had an affair, but his mistress told him it was over. Dix knew vicitm X. from work, and they socialized together. The night before the murders, Dix, his mistress, and victim X went to a bar together and socialized. She showed some interest in X. That night Dix tried to hire a hooker.

The next morning, X and another guy Y went to work. They were last seen alive at 9:20. One was alive at 10:00am when he spoke with family. But after 10:30, nobody at the worksite answered the phone. Their bodies were found at 9:00pm by family and friends.

Adams, the guy who found them called it an electrocution. They called appropriate emergency personnel, who attended. Another guy from the business behaved as if he knew it wasn’t an electrocution.

The first police officer on the scene had 5 months experience. What the ambulance attendants told her about the injuries did not change the “electrocution” theory.

Nobody could find any obvious electrical switches in the on position. Because of the concerns about electrocution, someone turned the power off in the building. The bodies were removed by flashlight.

The senior officer on the scene concluded in 2 minutes of investigation that the death was caused by an industrial accident.

According to policy, the watch commander was supposed to attend the scene, but he didn’t go. (He was later reprimanded.)

Police at the scene removed the bodies.

Adams, the guy who found the bodies and called it an electrocution returned to the scene, asking to examine it to satisfy himself how they died. He pointed out marks on a screwdriver that X had been holding, and said they came from electricity. He left with the deceased’s truck.

The next day the medical examiner discovered 3 bullet holes each in the heads of the bodies.

RCMP appointed a lead investigator and a file coordinator. They used an organized system of tips. Unfortunately, they couldn’t get much forensic evidence at the scene because of the false start to the investigation.

RCMP interviewed the employees of the business and determined that there was no criminal gangs involved that would lead to this execution style killing. Most alibis were checked out. They relied heavily on polygraph.

They narrowed the list of suspects to three: Dix, Adams, and another co-worker, Spencer. On the advice of counsel, Spencer refused the first invitation to the polygraph. He later consented, but logistics and a change of focus of the investigation prevented it from being done.

Adams’ first polygraph was inconclusive. He failed the second one, and walked out of the interview which followed. His behaviour at the scene and his romantic interest in the wife of the deceased suggested culpability. Interviews of people who knew him revealed that he knew about firearms, he would sometimes go into “trance-like” states, and he may have known that the victims were shot before the media announcement.

However, the investigators ruled him out because:

• he would have had a 5-year-old with him at the time of the murders, and the officers didn’t think he would leave the child unattended in the truck;
• he seemed to dumb to plan this murder;
• he would have had only a couple of hours to plan the murder;
• his peculiar behaviour was consistent with his general nature: a strange guy.
• the evidence of his romantic interest in the deceased’s wife was very weak

(Two years later, a more evidence arrived showing a romantic interest between Adams and the X’s wife.)

An FBI profiler was briefed about what the police knew. He thought that the murderer would have been young, male, white, physically large, and self-confident. This matched Dix

When interviewed, Dix lied about his affair, and his effort to get a prostitute. In his second interview, Dix told the police that he thought the deceased would go to work the next day (Saturday morning) alone. From an ambiguous remark in that interview, investigators inferred that Dix went to the worksite on the morning of the murder. They chartered and warned him, and arranged surveillance.

After the interview an undercover operator heard one side of a telephone conversation he had with someone. Dix said that he had been to the worksite. Police assumed that he meant on the morning of the murder.

Two weeks after the murder Dix’s wife gave a statement to the police which described Dix as spending a normal day involved with work. As an alibi, it was incomplete, but did suggest it would have been difficult to commit the murders.

Police interviewed the mistress at the same time. She disagreed with the jealousy theory.

After those interviews, Dix and his mistress spent the weekend together at a cabin at a lake. They shared the cabin with another woman and a child. Dix was alone for only a short time. Potential murder weapons were later found there.

Police conducted a Mr Big operation on Dix, including a staged shooting. Dix told the undercover operators that he would participate in a murder scenario, he bragged of his proficiency with a .22. Dix denied responsibility in the murders, but made helpful suggestions on how to cover up the shooting incident. The undercover operators gave Dix the impression that they would kill him if he reported their involvement in the shooting. Dix told his wife what he was doing in the Mr Big operation.She later said that his motive was merely the money.

After the staged shooting, Dix never contacted the undercover operators again. During the operation, Dix appeared to consider the possibility that he was being set up.

Police prepared wiretap applications which omitted some exculpatory details, and described the mistress as a suspect even though she had an alibi. Wiretap produced no evidence.

After the murder, Dix started collecting newspaper information about murders, and on this murder particularly. His wife thought that odd, but he trial judge didn’t.

Dix’ first polygraph was inconclusive. Police told him he failed. He told his wife he failed. Police knew she was considering leaving him, and did not correct the misunderstanding with her.

Separate officers from the investigation team conducted a file review. They identified some weaknesses, but generally agreed with the approach of the investigation. They became the new investigation team. They reinterviewed the mistress about her conversations with Dix on the morning of the murder. At this time, she was angry with Dix, and cooperative with police, but did not provide any inculpatory information.

Another police file review concluded that Dix had an alibi for the time of the shooting, but that Dix should not be entirely removed from suspicion, particularly if other inculpatory evidence came to light.

Buried behind the cabin at the lake, police found four revolvers. One of them was “probably” the murder weapon, but not certainly. The scientific report did not express the level of scientific confidence it was a match with the bullets recovered from the victims. Police told the prosecutor it was “definitely” the murder weapon, and the prosecutor said they had a case.

Police arrested and interrogated Dix. He made little comment. “Somehow” the media found out and scrummed him, getting some photos which made him look bad.

Police kept him at the detachment rather than sending him on to the remand centre. They interrogated him for 11 hours without food. They offered, but he declined, drink. They lied to him about some of the evidence. He asserted his right to silence 200 times. They employed a “good cop bad cop” technique, involving the bad cop going nose to nose screaming “What are you? A fucking parrot?” Crown had warned the officers in advance that this technique would not produce admissible evidence.

Police took Dix to the scene of he murders, against his consent. (Crown had told them it would be ok if they got consent.) He still denied the murders.

The handguns turned out to be related to a set of handguns stolen in Vancouver, and associated to a Vancouver criminal gang. Investigation of this gang revealed an Alberta associate who had sold the very property where the guns were found a few years earlier. Police could find no link between Dix and this criminal gang.

While Dix remained in remand, police approached another inmate and asked him to keep his eyes and ears open. Simpson told the police that Dix confessed to him, and he gave a version of events which contained little hold-back detail, and got many points wrong. He received some special consideration.

Another inmate volunteered that Dix confessed to him. He provided information known to Dix, but did not provide any hold-back type information.

A third inmate volunteered with his lawyer to provide information. Police took him up on it. His contact occurred during the time Dix received his Crown disclosure. This inmate did not volunteer until after the preliminary hearing. Just before the trial, he wrote a letter to defence counsel retracting his evidence, and boasting that he made this offer in order to extract money from the police. He explained his letter to police as an effort to avoid being labelled a rat. (He played both sides of the fence.)

Because one of the informers said that Dix wanted the mistress killed, police prepared a letter purportedly from another inmate offering to do the job. Dix gave this letter to defence counsel. Crown misrepresented the letter in court at the bail hearing.

One of the informants had been represented by defence counsel. Crown failed to identify the conflict in interest in good time. Crown would not reveal the identity of the informant until shortly before trial, putting defence counsel in an impossible position.

Police told lies to various witnesses which made Dix look guilty or bad. Often this served no purpose.

At the preliminary hearing, one prosecutor withdrew because he did not believe the prison informers, and the rest of the case looked too weak to him.

At the trial, the original prosecutor had to withdraw because of the misleading remarks he made in the bail hearing. Another prosecutor reviewed the file, and concluded that there wasn’t enough evidence to proceed further.

Conclusions

The judge at the civil suit rejected statement analysis as a useful technique, he pointed out weaknesses of profiling. The police and prosecutors confused “consistent with” scientific opinions with “suggestive of” or “conclusively shows” (Blood spatter and weapons testing)

The police and prosecutors chose to believe inculpatory evidence and reject exculpatory evidence.

Time line evidence shows it as unlikely that Dix had the opportunity to commit the offences.

When inculpatory evidence turned up with regard to one suspect, police abandoned the other suspect with undignified haste.

Nobody investigated whether other suspects had any connection to the location where the suspicious weapons were found. When police found the one bunch of weapons, they didn’t search any further.

The trip to the crime scene in the middle of the night was a kidnapping.

Police and prosecutors have a duty to investigate the reliability of the information they receive. With jailhouse rats this is particularly important, so that the court can learn of the real relationship between the rat and his testimony.

Police shouldn’t bad-mouth the suspect, nor tell lies to witnesses about the evidence they have without good reason. In this case they helped break up his marriage by misleading his wife about the strength of the evidence against him.

Don’t embark upon painful investigative techniques without a reason. (Interrogation was not expected to produce admissible results.)

Tactical late- or non- disclosure offends the Charter, and makes trials unfair.