Jailed for murders they didn't commit
May 21, 2003
Guy Paul Morin, David Milgaard, Donald Marshall Jr., Tom Sophonow. These are just a few Canadian names made famous by their convictions for murders they did not commit.
A sensational crime, police under pressure, an innocent victim, an unsympathetic suspect, circumstantial evidence, a shaky witness, a jailhouse rat and a dubious confession. These are some factors that damned them.
The justice we mete out is often imperfect. Nothing highlights that more dramatically than their stories. And no issue better illustrates the essential tension on our legal system. That system is designed to protect the broad liberties we cherish, but it can also violate the rights of the innocent when it loses its balance.
At other times, the rules that protect the rights of the accused are exploited by people guilty of terrible crimes. The result is often misplaced public outrage that the system favours criminals over their victims.
Since the Canadian Charter of Rights and Freedoms was enacted in 1982, the courts have tackled several issues as they seek an effective balance. Many lawyers and legislators think we have done well, through changes in police procedure, tougher charge-approval standards, stricter rules on pretrial disclosure of prosecution evidence and changes to the review process that allows wrongful convictions to be overturned.
Tom Sophonow isn't so sure.
In the modest old Queensborough home he shares with his wife and their three children, the tall, angular 49-year-old pours a cup of vanilla nut tea for a guest and talks about his own 22-year odyssey. He does so with disarming generosity and grace. His deep voice is soft and deliberate as he explains how the police and the courts failed him, and why he believes they will continue to fail. "Nothing has changed," Sophonow says, citing everything from the continued use of jailhouse informants to the questionable practices of police and prosecutors when public pressure is intense. "Where it had changed, it's reverted back."
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Sophonow's ordeal began on the cold, windy night of Dec. 23, 1981. He had driven to Winnipeg from Vancouver to visit his three-year-old daughter, Kimberley, but he couldn't agree with her mother on a suitable time to meet. He left the Christmas presents with their relatives and hit the road. Car trouble stalled him, though, at a Pembina Highway Canadian Tire on his way out of town.
While he waited for the brakes to be repaired, he bought some candy- and toy-filled Christmas stockings at a nearby Safeway. When his car was fixed, he delivered them to the children's wards at four local hospitals, then headed home to Vancouver.
Halfway across the city, as Sophonow was delivering those stockings, 16-year-old Barbara Stoppel was alone with a tall man with a cowboy hat in the Ideal Donut shop. Witnesses watched as he hung the closed sign and Stoppel followed him into the washroom.
Just after the man left, Stoppel was found barely alive on the bloodied bathroom floor, a nine-inch piece of twine so deeply embedded in her neck that at first the paramedics didn't notice it.
Six days later, she died.
HAD A RECORD
The crime deeply shocked Winnipeg, and police pursued the case with real vigour. But it was two months before police suspected Sophonow, who had a petty theft record in Winnipeg, a vague resemblance to the killer and a cowboy hat of his own.
On March 12, 1982, Winnipeg police sergeants Wade Wawryk and Ed Paulishyn took Sophonow to the Vancouver Public Safety building at 312 Main. They aggressively interrogated him for more than four hours, accused him of the crime, denied him a lawyer and subjected him to a humiliating cavity search.
Police maintained that Sophonow confessed. He denies it, but he allows that they reduced him to an emotional wreck.
"After the interrogation was over I believed to about 95 per cent certainty that I did kill Barb Stoppel," Sophonow recalls, "because they were saying that there were seven people who witnessed me coming out of the doughnut shop. And the only thing I could think of was that there weren't seven people there when I came out of the doughnut shop. There were only two kids on bicycles . . . .
"It was a different doughnut shop."
Police produced transcribed notes representing just 15 minutes of the interrogation. Sophonow never got a chance to review or sign them, and the event was not recorded. Police procedures have changed since then -- most formal interviews are videotaped, many procedural protocols are stricter -- but debate still rages about the extent of the improvement.
Some contend that police exert enormous psychological pressure with increasingly sophisticated, subtly manipulative interview methods that can induce false confessions, especially among emotionally vulnerable people who feel guilt for other sins.
NYC JOGGER CASE
One U.S. study suggests that false confessions can run as high as six per cent for certain types of crimes. Only last December, five men were exonerated of the 1989 rape and attempted murder of a New York City jogger. The five, aged 14 to 16, had been on what the New York Post dubbed a "wilding" spree in Central Park. Each had confessed, but each placed most of the blame on the others. New evidence now shows that none was involved.
Yet here at home, the Supreme Court of Canada recently ruled that "in the vast majority of cases, police will have to somehow convince the suspect that it is in his or her best interests to confess." Those efforts are only inappropriate when there is ill-defined "reasonable doubt about whether the will of the subject has been overborne."
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It was far more than an alleged confession that damned Tom Sophonow, though, putting him through three trials, which resulted in one hung jury and two convictions, both of which were overturned on appeal. It was the full gamut of mistakes associated with wrongful convictions.
The problems began with what retired Supreme Court of Canada justice Peter Cory called police "tunnel vision," following the public inquiry he conducted into the Sophonow case. Too eager to quickly solve a brutal crime, Winnipeg police declared they had their man when they arrested Sophonow. Then they had to prove it.
In his report, released in October 2001, Cory found the police led witnesses to identify their suspect and prosecutors concealed evidence that would have helped Sophonow's case. The errors in judgment are shocking, both in their obviousness and their number.
For example, police sought to link the twine used to strangle Stoppel to a manufacturer in the Pacific Northwest, where Sophonow is from, but chose not to conduct a simple test that would have shown it was likely made in Portage la Prairie. The prosecutors knew of that likelihood but didn't reveal it, and held to their argument that the twine came from B.C.
Efforts to get witnesses to identify Sophonow as the murderer were badly compromised, as people were, through both carelessness and design, encouraged to select him. The witnesses' stories were often fluid, revealing both the frailty of memory and our human tendency to confirm what those around us passionately believe.
Critical information was distorted in court, and key leads that might have led to the real killer were not explored. At the third trial, overzealous prosecutors intent on shocking the jury claimed that Sophonow had sexually assaulted Stoppel, even though the evidence of any such assault was extremely dubious.
Some of the most troubling testimony at the inquiry involved the three jailhouse informants who testified that Sophonow had confessed to them, prompting strong recommendations for reform.
Cory heard that one informant, Adrian McQuade, initially said that he and Sophonow -- a former chum -- didn't speak about the murder when the two had an arranged meeting at the Winnipeg remand centre not long after Sophonow's arrest. McQuade reversed his position after he was told by the Crown that if he didn't testify that Sophonow confessed to him, he would be called as a hostile witness and exposed as a snitch.
Another jailhouse informant, Thomas Cheng, had more than two dozen charges against him dropped after he agreed to testify against Sophonow.
A third, Douglas Martin, has testified in so many criminal cases -- three before Sophonow's and five since -- that he is known as "father confessor."
"As a group," Cory said of the three in his report, "they have an unsurpassed record for deception and lying." He said jailhouse informants are capable of deceiving even skeptical, experienced observers, that juries are especially vulnerable and that their evidence should be excluded in all but the rarest of circumstances.
"On those rare occasions that it is admitted, it must be approached with the greatest caution . . . . Their testimony can all too easily destroy any hope of holding a fair trial and severely tarnish the reputation of Canadian justice."
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Some provinces have set up special committees to review and track the prosecution's use of jailhouse informants. Since October 1999, B.C. has required only that their use must be approved by the regional Crown counsel. But Crown spokesman Geoffrey Gaul says that although the approval takes place "at the highest levels of our office," he is unable to say how often the use of jailhouse informants is rejected and can't imagine how that would be tracked.
SHANNON MURRIN'S TRIAL
The rule changes, which followed Fred Kaufman's 1998 report to the Ontario government on Guy Paul Morin's wrongful murder conviction, came into effect well into the trial of Shannon Murrin, accused in the 1994 rape and murder of eight-year-old Kelowna girl Mindy Tran.
Chief among the witnesses against Murrin was one Dougie Martin. Martin testified that Murrin confessed to him after he was placed in the next cell in the segregation unit at Mission Institution. Martin's record, as a witness and a criminal convicted of more than 100 offences, was revealed on the stand, though, and the fact that the police and the Crown felt they needed to rely on him undermined their already tenuous case.
Murrin was acquitted in January 2000, after spending five years in jail, yet many still doubt his innocence. Depending on whom you talk to, Murrin is proof that we let people get away with murder, proof that the system works or proof that the police and the Crown have a long way to go to protect the integrity of the judicial process.
Sophonow, who has become friends with Murrin, is firmly in the last camp. He says the police and prosecutors made the same kinds of mistakes in Murrin's case that they made in his own. And although Murrin was never found guilty, Sophonow encourages him in his continuing fight for true exoneration. "You always have to be in their face."
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"I feared Murrin would be convicted," says lawyer Peter Wilson, who defended him prior to representing Sophonow at the Cory inquiry. While he prepared for Murrin's trial, he read Kirk Makin's book Redrum on Guy Paul Morin's wrongful conviction, and was struck by the parallels. "I was afraid Murrin would be the next in line."
Certainly the Murrin case has the hallmarks of wrongful convictions: a tragic crime, public outrage, initial evidence that suggested the accused as a suspect and then numerous breakdowns in police procedure.
At one point, Kelowna RCMP officer Gary Tidsbury approached friends of Murrin, including two former federal convicts, and asked them to talk to him. They talked to him all right, at the site where Mindy Tran's body was found, and they also nearly beat him to death.
Victoria police asked to examine the RCMP investigation recommended against laying charges against any officers as a result of this and other problems with the investigation. Tidsbury, who has since retired, denies any wrongdoing. But a report by Alberta RCMP found inadequate police interview records, poorly handled photo lineups, failure to disclose evidence and bad judgment by some officers.
The report, partly released under the Freedom of Information Act, made 23 recommendations, but they were censored. For those looking for evidence of reform, the answer is too often simply "Trust us."
Wilson called for a public inquiry into the handling of the case, and NDP attorney-general Andrew Petter stated the request should be considered seriously once the police investigations into the handling of the case were completed. No inquiry was forthcoming.
Last month, though, lawyer Bob Kasting called for a public inquiry into the wrongful conviction of Leslie Maxine Tutt. In 1996, Tutt was convicted of first degree murder in the heroin overdose death of Marc Ward, based on the evidence of two police informants. In 1999, a new trial was ordered, but in October 2001 with the jury already selected, the Crown finally decided not to proceed.
Kasting also believes she is entitled to compensation, based on a United Nations convention and guidelines subsequently drawn up by federal and provincial officials. But the attorney-general's office has rejected compensation and an inquiry seems unlikely.
Inquiries are not in short supply. In March, Newfoundland ordered one based on the wrongful convictions in the 1990s of Greg Parsons, Randy Druken and Ronald Dalton. Saskatchewan is expected to call one in the Milgaard case once a decision is rendered [judgment was reserved April 15] in the final appeal of Larry Fisher -- the man eventually convicted of Gail Miller's murder.
'NO REAL CHANGE'
James Lockyer, the Toronto lawyer who heads the Association in Defence of the Wrongly Convicted, wishes the inquiries had more impact. "The federal government hasn't done anything in response to the Morin and Sophonow inquiries. There's been no real systemic change as a result of Sophonow inquiry. And perhaps most importantly there has been no legislative change.
"And the feds get away with that because they always take the position that they will not seek and don't want standing at these inquiries. It's very clever," Lockyer says. "The feds weren't there so the feds ignore the recommendations. You can't even discuss it with them. You're wasting your breath."
Lockyer does allow that Crown committees that review the use of informant testimony are better than nothing. "But they're not the solution. The solution is you ban them. Justice Cory recommended it in the Sophonow inquiry. But of course the only people who can do that are the feds."
Murrin, denied an inquiry into the ordeal that informants inflicted on him, is taking civil action against the police, as he seeks both redress and a different form of exoneration.
While an inquiry would still be welcome, more transparent evidence that police are learning from past failures is essential. "Police should have a list of problems that if they occur in a case being investigated should cause a big red flag to go up and say 'we better take another look at this,' " Wilson says.
But like Sophonow, he's skeptical about the degree to which we've made the necessary strides. "I don't think we've done much," Wilson says, his voice tinged with resignation and disappointment. "I don't see much difference in the way informants are used in the system."
Wilson says police can still offer money or drop charges against a witness with a criminal history. "Informants are always looking for something."
When Wilson defended Murrin, he was unable to convince the judge that Douglas Martin shouldn't be allowed to testify. He said he used the recommendations of the Kaufman report as part of the basis for excluding Martin's story. There are 27 recommendations, any number of which would have kept Martin off the stand. "It didn't help. It didn't help me at all."
Cory's short, blunt, more sweeping recommendations have also been substantially ignored. "Somewhere in Canada, every week, an informant is testifying against an accused," Wilson says. "When the police have a weak case that they can bolster with the use of an informant, they'll use the informant. And that really hasn't changed."
Wilson goes out of his way, though, to acknowledge that the behaviour of the RCMP in the Murrin case was unusual, and that they are usually scrupulous in their efforts to get "pristine and objective views and recollections of witnesses."
In Sophonow's case, while Winnipeg police often tainted evidence, they also uncovered much information that would have helped him. "From my perspective, the biggest single cause of his wrongful conviction was concealment of evidence that would have helped him by the Crown. Not by the police.
"There was a disturbing pattern of police disclosing stuff to the Crown, good or bad, and for some reason the good stuff from Sophonow's perspective hit a roadblock in the Crown office."
And while many argue rules that oblige the Crown are much stricter, particularly since the Supreme Court of Canada's 1990 Stinchcombe decision, Wilson says the rules during Sophonow's trials also obliged the Crown to disclose all their evidence. "You can have all the rules in the world about what you have to do. The fact is that people don't always comply with the rules."
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Sometimes when the authorities don't follow the rules there's an entirely different kind of tragedy. In 1981, Terry Samuel Arnold lived across the street from the Ideal Donut Shop. He had spoken with Stoppel in the shop. He frequently wore a cowboy hat. He went to the hospital where Stoppel lay dying and asked her family how she was doing.
Police interviewed Arnold more than once about the Stoppel murder. But it's only now that he is seen as the prime suspect in her death -- now that he's left a trail of abuse and possibly murder right across the country.
Arnold is now a suspect in three murders and a mysterious disappearance. In 1987, Denise Lapierre was found 50 steps from Arnold's Calgary backyard. In 1988, Roberta Feguson was last seen at a Cultus Lake campground, 600 metres from Arnold's trailer. While he was in the Chilliwack area, Arnold was convicted of fondling two girls and charged with raping another.
Arnold was serving time for three sexual assaults in Newfoundland, involving girls 10, 12 and 14, when the persistence and diligence of three members of the RCMP -- in Kimberley, Penticton and Kelowna -- connected him with the murder of 16-year-old Christine Browne.
In 1997, Arnold was released from Dorchester Penitentiary after serving nearly five years for the assaults. Kelowna RCMP Constable Archie Doody then conducted an undercover operation designed to get Arnold to confess to the murder of Browne, a girl from Trail whom Arnold met at a Penticton Arcade.
Doody believes Arnold raped and killed her on Lower Nickel Plate Road, near Hedley, southwest of Penticton. Arnold told the police, posing as gangsters, that he was the killer when they took him to the site. Then he recanted, saying he was waiting in a nearby car while another man committed the crime.
In October 1999, Arnold was convicted by a jury of the first degree murder of Christine Browne and sentenced to life in prison. But the Crown failed to disclose three forensic reports and two witness statements to the defence. The B.C. Court of Appeal ordered a new trial. Then, in March 2001, with the new trial about to begin, the Crown stayed the charges without explanation.
Even though Arnold remained under investigation for the murders of Stoppel and Lapierre, he was released from the Victoria Remand Centre, and disappeared from sight.
Lawyer Rick Peck, who acted for the Crown in the appeal that overturned Arnold's conviction and has defended some of B.C.'s most notorious criminals, says if one allegedly guilty person goes free, it's the price we all pay for our liberties. "If you have to give the benefit of the law to the devil, so be it."
Peck believes the Charter has created a better balance, and he also believes that the police are more attentive to their obligations. In the end, though, with the police he believes it comes down to the excellence of the investigator. "There's no question they lose it every now and again."
Good procedure and good judgment can help, but Peck believes the system will never be infallible. "I don't know that we'll ever fully protect against wrongful convictions."
Good judgment requires more restraint than we often exercise. "The lesson that I came away from the Sophonow inquiry with," says Wilson, "was it doesn't matter how compelling the evidence looks. The thing that every one of us has to remember -- and this applies to judges, to cops and to defence lawyers -- is that this accused in this case may be innocent."
Tom Sophonow wishes more people would remember that.
He wishes his neighbour, who said he'd rather be on the good side of a murderer than the bad one, hadn't had to pull a firebomb away from the wall of his house in 1995. He wishes that a colleague at the manufacturing plant where he worked hadn't hung a hazard tag with the word "murderer" scrawled across it on his coveralls last June, and that he hadn't quit because of the incident. He wishes his father hadn't died while he was in prison, likely believing his son was guilty.
You might think that Sophonow, who received the last cheque in his $2.6 million settlement with the Manitoba government in March, would simply try to get on with building a quiet life with his family, and restoring a ramshackle heritage home he bought recently on New Westminster's Royal Avenue.
Instead, he's beginning an effort to fight for the rights of the wrongfully accused. He hopes lawyers and the courts will take him seriously as he promotes himself as an expert witness on the many ways in which the system can fail.
And even as he contemplates the irony of Terry Arnold's release from prison, he offers a caution. "I'm not certain that Terry Arnold committed the murder of Barbara Stoppel. I'm not."
He wishes many more people would reserve judgment. "Why would the police arrest you if you weren't guilty? That's the kind of stereotype that has to be changed."
No matter how many rules we make, they are no substitute for sound judgment and restraint.
@Copyright 2003 The Vancouver Sun
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