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We should learn from past mistakes

Meter's running on another claim of wrongful conviction

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In the narrative of most wrongful convictions, there is a moment when it becomes patently obvious the architects of the miscarriage of justice -- police and the prosecutors -- have misled their political masters.

The deception usually begins when politicians receive a claim of wrongful conviction and then ask the cops and Crowns if there is anything to be worried about.

In most cases, they are assured there is nothing to the claims.

Years later, following an independent review by the courts or federal Justice Department, it is confirmed that despite all those assurances, a miscarriage of justice had occurred.

Typically, those political masters will reach the final, awful conclusion they have been deceived right around the time they are signing a seven-figure cheque to compensate the victim and pricing out office space for the seven-figure judicial inquiry.

This has happened so many times you would think most provinces -- if only in the interest of fiscal prudence -- would be more careful about how they vet claims of wrongful conviction and would start out with any claim by getting truly independent advice and analysis.

Lamentably, there is no sign anyone has learned from earlier mistakes.

The most recent example of this trend involves former Brandon lawyer Deveryn Ross, who claims he was wrongly convicted of fraud in 1995.

Earlier this month, Federal Court Justice Richard Mosley ordered Justice Minister Peter MacKay to take a second look at Ross' application for a new trial under Sec. 696 of the Criminal Code.

Mosley also delivered a stinging rebuke to former federal justice minister Rob Nicholson for ignoring both the evidence and the rule of law in turning down Ross' first application.

Mosley's decision does not substantiate all of Ross' claims, but it substantiates a central part of those claims: that the failure to disclose key evidence about two star Crown witnesses deeply affected the fairness of Ross' original trial.

MacKay has two weeks to decide whether to appeal Mosley's decision.

Regardless of what MacKay decides, one would hope the aforementioned political masters in Manitoba have studied the decision and are waking up to the fact they have another big mess on their hands.

Unfortunately, it seems we're destined to repeat the same silly, wasteful mistakes of the past.

In questioning during budget estimates last week, Liberal MLA Jon Gerrard asked Premier Greg Selinger if, in light of the Mosley decision, he was prepared to grant Ross' requests for a new trial.

Gerrard reminded Selinger that in 2003, when faced with similar concerns in the James Driskell case, then-attorney general Gord Mackintosh agreed to have the case reviewed in a Manitoba court. In doing so, he essentially gave Ottawa a green light to quash the original conviction and put the matter back in provincial jurisdiction.

Manitoba ultimately decided not to proceed with a new trial and entered a stay of proceedings.

However, under questioning by Gerrard, Selinger responded with a scripted answer with the fingerprints of the public prosecutions branch all over it. "This judgment is very freshly rendered, and our officials are going to fully review it, and it would be far too early to make additional comments at this time," Selinger said.

After reading those comments, it seems fairly certain Selinger has not been given a frank briefing of the deeper implications of the Mosley decision.

If some of Selinger's staff had dug deeper into the 31-page judgment, they would have discovered Manitoba Justice has been solely focused on defending the original verdict rather than assessing the impact of new evidence.

He would also have found out Manitoba Justice actually hired Paul Jensen, the prosecutor from the original trial, to write its response to Ross' Sec. 696 application. Mosley suggested given his investment in the original verdict, Jensen "should not have been involved in preparing Manitoba's response."

Jensen's involvement, Mosley wrote, likely impaired Manitoba's view of the Ross case, and a truly independent analyst "would have come to different conclusions with respect to the issues raised on the application."

In making this observation, Mosley put his finger on the very heart of the matter in most wrongful convictions.

Provincial prosecution services rarely go outside their own ranks to get an objective review of a post-conviction claim of innocence. As a result, they rarely get a fair, balanced assessment of new evidence.

This is a bad, expensive process. All the time and effort spent defending an original verdict, to the exclusion of new evidence, only drives up the total financial compensation paid to victims of the wrongful conviction.

In the Driskell case, the political masters did finally figure out they were getting bad information from the Justice Department. Unfortunately, it came a bit late; Driskell still collected $4 million in compensation and the province spent $3 million more on a judicial inquiry that showed, despite assurances to the contrary, it was a bad case from the beginning.

Following in that inglorious tradition, we now have Ross, a case involving a failure to disclose evidence, an unfair trial, a failure to warn the political masters and a demand Manitoba step forward and do the right thing.

And the whole time, the meter is running.

Republished from the Winnipeg Free Press print edition April 21, 2014 A10

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