Winnipeg Free Press - PRINT EDITION

Getting away with murder

Plea bargaining down to manslaughter is often a distasteful but necessary evil to prevent killers from walking, frustrated justice officials say

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The majority of Winnipeg murder cases are falling apart in court, either through discounted charges -- which give killers a much quicker return to the community -- or with no conviction at all.

A Free Press analysis reveals 80 people have appeared before a judge since 2007 to deal with a charge of either first- or second-degree murder. Those charges were laid by police, authorized by senior Crown officials and suggest justice officials believe the killing was a deliberate act.

Only 31 accused murderers were actually convicted of that charge, according to court records. Another 38 charges were reduced to manslaughter, which implies the killing was unintentional and ensures the automatic life sentence that comes with murder is taken off the table. A manslaughter conviction carries no mandatory minimum sentence.

The other 11 people walked free with no conviction through a stay of proceedings by the Crown, a discharge at the preliminary hearing or an acquittal by a judge or jury. In total, only 39 per cent of murder cases disposed of over the past five years have ended with a murder conviction.

Legal experts say those numbers prove many people are literally getting away with murder.

"Absolutely they are," said prominent Winnipeg defence lawyer Greg Brodsky. He has taken on more murder cases than any other lawyer in North America, with a huge chunk of them resulting in a plea bargain in which his client admits to the lesser charge of manslaughter.

"It's a bargaining chip," Brodsky admits. And he says defence lawyers -- and their killer clients -- often have justice officials in a difficult place. Either the Crown proceeds with the initial murder charge through a long, drawn-out trial where the outcome may be in doubt, or accepts the reduced guilty plea and at least ensures a conviction.

"A lot of defence lawyers will say don't take a chance, let's minimize the risk," said Brodsky. And the Crown is often left with no choice but to agree, especially with such a huge number of murder cases clogging up the already overstressed justice system.

"If every case were to proceed (on the original charge), the backlog would be so extensive. You would have murder charges being dismissed simply because of delay," said Brodsky. "We just couldn't accommodate that proposition."

James Jewell is a recently retired Winnipeg police homicide detective who worked on more than 200 homicide cases during his career. He believes the volume of reduced charges is an insult to the victims, their families and those dedicated to bringing killers to justice.

"Murder in Canada is discounted at a completely unacceptable premium," said Jewell. "Life, it seems, is very cheap."

Crown attorneys often cite a variety of mitigating factors in their reasons for taking reduced pleas, such as the use of alcohol and drugs. Those common "social ills" mean the killer often couldn't form the legal intent needed to prove murder, they say.

"People often want to inflict damage. They want to hurt someone, but they don't want to kill someone," said Brodsky. Several Crown attorneys who spoke privately to the Free Press agreed. They were given strict orders from supervisors a few years ago to start giving a more thorough explanation in court of the reasons for accepting a reduced charge, mostly for the sake of public awareness.

"Are we comfortable with this recommendation? No, we are not. We had to compromise our position so a guilty party didn't walk away. It's one of the big dilemmas for Crown counsel," Crown attorney Dale Harvey bluntly told a judge in 2010 in explaining a murder-to-manslaughter plea on a deadly beating. The killer got 30 months of time spent in custody.

The Free Press analysis shows 31 killers whose murder charges were reduced to manslaughter were adults, while only seven were youths. The majority of adult offenders received sentences in the range of six to 12 years behind bars, including pretrial custody. With parole eligibility, many are out within a few years of the actual slaying. The maximum sentence for a youth who commits manslaughter is two years in custody.

It's a much different ratio for murder, with 15 adults and 16 youths being convicted. Of those youth cases, most involved situations in which they agreed to plead guilty to second-degree murder and receive the maximum youth sentence of four years in custody in exchange for the Crown not seeking to raise them to adult court. So even a murder conviction often includes an element of plea bargaining, at least for teens.

A second-degree murder conviction for an adult means the killer must serve 10 to 25 years behind bars before becoming eligible for parole. A first-degree murder conviction carries a mandatory 25 years. And everyone convicted of murder will remain under strict conditions in the community until death, with any breaches potentially earning a one-way ticket back to prison.

"Because of the reality of these numbers, I have often advocated for a mandatory minimum sentence of 10 years for the offence of manslaughter," Jewell told the Free Press. "That would create the need to raise the second-degree murder conviction sentence to a mandatory minimum of 15 years. First-degree murder would remain the same."

The most common "let's make a deal" charge is second-degree murder, which was laid against 69 people whose cases have been resolved since 2007. Of those, only 22 were found guilty as charged. Of the remaining cases, 37 reduced their pleas to manslaughter, while the other 10 were not convicted of any charge. Only 11 people have gone through the courts after facing a first-degree charge since 2007. Of those, eight were convicted, one was reduced to second-degree murder, one was reduced to manslaughter and one walked free.

The Free Press analysis shows 16 people have had their manslaughter cases dealt with since 2007. Only six were convicted of that offence. Another five were found guilty of a lesser, non-homicide charge, and the remaining five were cleared of any legal wrongdoing.

Several justice sources told the Free Press there is also the issue of "overcharging," in which an obvious manslaughter case is initially treated as murder by the police and Crown. This may be done to help expedite bargaining between lawyers to ensure a conviction is obtained without going to trial.

"Plea bargaining is a necessary evil. The risk of no conviction is a reality that the Crown has to deal with and, as distasteful as it is, charges are often appropriately reduced in order to ensure that someone is held accountable for the crime," Jewell said.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition June 16, 2012 A6

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